AB 432: Personal care services.
- Session Year: 2017-2018
- House: Assembly
- Latest Version Date: 2017-09-19
Existing law provides for the Medi-Cal program, which is administered by the State Department of Health Care Services, under which qualified low-income individuals receive health care services. The Medi-Cal program is, in part, governed and funded by federal Medicaid Program provisions. Under existing law, one of the methods by which Medi-Cal services are provided is pursuant to contracts with various types of managed care plans.
Existing law establishes the county-administered In-Home Supportive Services program to aged, blind, or disabled persons, as defined, who are unable to perform the services themselves and who cannot safely remain in their homes or abodes of their own choosing unless these services are provided. Under the Medi-Cal program, similar services, known as personal care option services, are provided to eligible individuals. The Medi-Cal program also defines waiver personal care services to mean personal care services authorized by the State Department of Health Care Services for persons who are eligible for either nursing or model nursing facility waiver services. Existing law authorizes a county board of supervisors to contract with a nonprofit consortium or to establish a public authority to provide in-home supportive services.
This bill would additionally authorize a county board of supervisors to contract with a nonprofit consortium or to establish a public authority to provide waiver personal care services. The bill would authorize certain entities to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment with representatives of recognized employee organizations for an individual who is employed by a recipient of waiver personal care services and would make conforming changes.
The bill would provide that a county that has met specified conditions shall not be deemed to be the employer of these individuals for purposes of liability due to negligence or intentional torts of the individual provider. The bill would also provide that a public authority, as specified, shall be deemed to be the employer of providers of waiver personal care services for purposes of employer-employee relations, as specified, and would require that wages and benefits for these providers meet specified requirements.
The California Public Records Act requires state and local agencies to make public records available for inspection by the public, subject to specified criteria and with specified exceptions. The act exempts from public inspection specified information regarding persons paid by the state to provide in-home supportive services or personal care services.
This bill would additionally exempt from public inspection specified information regarding persons paid by the state to provide waiver personal care services.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
Existing law provides for the Medi-Cal program, which is administered by the State Department of Health Care Services, under which qualified low-income individuals receive health care services. The Medi-Cal program is, in part, governed and funded by federal Medicaid Program provisions. Under existing law, one of the methods by which Medi-Cal services are provided is pursuant to contracts with various types of managed care plans.
Existing law establishes the county-administered In-Home Supportive Services program to aged, blind, or disabled persons, as defined, who are unable to perform the services themselves and who cannot safely remain in their homes or abodes of their own choosing unless these services are provided. Under the Medi-Cal program, similar services, known as personal care option services, are provided to eligible individuals. The Medi-Cal program also defines waiver personal care services to mean personal care services authorized by the State Department of Health Care Services for persons who are eligible for either nursing or model nursing facility waiver services. Existing law authorizes a county board of supervisors to contract with a nonprofit consortium or to establish a public authority to provide in-home supportive services.
This bill would additionally authorize a county board of supervisors to contract with a nonprofit consortium or to establish a public authority to provide waiver personal care services. The bill would authorize certain entities to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment with representatives of recognized employee organizations for an individual who is employed by a recipient of waiver personal care services and would make conforming changes.
The bill would provide that a county that has met specified conditions shall not be deemed to be the employer of these individuals for purposes of liability due to negligence or intentional torts of the individual provider. The bill would also provide that a public authority, as specified, shall be deemed to be the employer of providers of waiver personal care services for purposes of employer-employee relations, as specified. specified, and would require that wages and benefits for these providers meet specified requirements.
The California Public Records Act requires state and local agencies to make public records available for inspection by the public, subject to specified criteria and with specified exceptions. The act exempts from public inspection specified information regarding persons paid by the state to provide in-home supportive services or personal care services.
This bill would additionally exempt from public inspection specified information regarding persons paid by the state to provide waiver personal care services.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
Existing law provides for the Medi-Cal program, which is administered by the State Department of Health Care Services, under which qualified low-income individuals receive health care services. The Medi-Cal program is, in part, governed and funded by federal Medicaid Program provisions. Under existing law, one of the methods by which Medi-Cal services are provided is pursuant to contracts with various types of managed care plans.
Existing law establishes the county-administered In-Home Supportive Services program to aged, blind, or disabled persons, as defined, who are unable to perform the services themselves and who cannot safely remain in their homes or abodes of their own choosing unless these services are provided. Under the Medi-Cal program, similar services, known as personal care option services, are provided to eligible individuals. The Medi-Cal program also defines waiver waiver personal care services to mean personal care services authorized by the State Department of Health Care Services for persons who are eligible for either nursing or model nursing facility waiver services. Existing law authorizes a county board of supervisors to contract with a nonprofit consortium or to establish a public authority to provide in-home supportive services.
This bill would additionally authorize a county board of supervisors to contract with a nonprofit consortium or to establish a public authority to provide waiver personal care services. The bill would authorize certain entities to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment with representatives of recognized employee organizations for an individual who is employed by a recipient of waiver personal care services and would make conforming changes.
The bill would provide that a county that has met specified conditions shall not be deemed to be the employer of these individuals for purposes of liability due to negligence or intentional torts of the individual provider. The bill would also provide that a public authority, as specified, shall be deemed to be the employer of providers of waiver personal care services for purposes of employer-employee relations, as specified.
Existing law provides for the Medi-Cal program, which is administered by the State Department of Health Care Services, under which qualified low-income individuals receive health care services. The Medi-Cal program is, in part, governed and funded by federal Medicaid Program provisions. Under existing law, one of the methods by which Medi-Cal services are provided is pursuant to contracts with various types of managed care plans.
Existing law establishes the county-administered In-Home Supportive Services program to aged, blind, or disabled persons, as defined, who are unable to perform the services themselves and who cannot safely remain in their homes or abodes of their own choosing unless these services are provided. Under the Medi-Cal program, similar services, known as personal care option services, are provided to eligible individuals. The Medi-Cal program also defines waiver personal care services to mean personal care services authorized by the State Department of Health Care Services for persons who are eligible for either nursing or model nursing facility waiver services.
Existing law establishes the California In-Home Supportive Services Authority, also known as the Statewide Authority, and makes the authority the entity authorized to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment with representatives of recognized employee organizations for any individual provider who is employed by a recipient of supportive services, as specified. Existing law establishes an advisory committee, appointed by the authority, to provide ongoing advice and recommendations regarding IHSS to the authority, the State Department of Social Services, and the State Department of Health Care Services. services. Existing law authorizes a county board of supervisors to contract with a nonprofit consortium or to establish a public authority to provide those in-home supportive services.
This bill would additionally authorize the Statewide Authority and certain other a county board of supervisors to contract with a nonprofit consortium or to establish a public authority to provide waiver personal care services. The bill would authorize certain entities to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment with representatives of recognized employee organizations for an individual who is employed by a recipient of waiver personal care services and would make conforming changes.
The bill would provide that the state, the Statewide Authority, or any a county that has met specified conditions shall not be deemed to be the employer of these individuals for purposes of liability due to negligence or intentional torts of the individual provider. The bill would also provide that a public authority, as specified, shall be deemed to be the employer of providers of waiver personal care services for purposes of employer-employee relations, as specified.
Existing law provides for the Medi-Cal program, which is administered by the State Department of Health Care Services, under which qualified low-income individuals receive health care services. The Medi-Cal program is, in part, governed and funded by federal Medicaid Program provisions. Under existing law, one of the methods by which Medi-Cal services are provided is pursuant to contracts with various types of managed care plans.
Existing law establishes the county-administered In-Home Supportive Services program to aged, blind, or disabled persons, as defined, who are unable to perform the services themselves and who cannot safely remain in their homes or abodes of their own choosing unless these services are provided. Under the Medi-Cal program, similar services, known as personal care option services, are provided to eligible individuals. The Medi-Cal program also defines waiver personal care services to mean personal care services authorized by the State Department of Health Care Services for persons who are eligible for either nursing or model nursing facility waiver services.
Existing law establishes the California In-Home Supportive Services Authority, also known as the Statewide Authority, and makes the authority the entity authorized to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment with representatives of recognized employee organizations for any individual provider who is employed by a recipient of supportive services, as specified. Existing law establishes an advisory committee, appointed by the authority, to provide ongoing advice and recommendations regarding IHSS to the authority, the State Department of Social Services, and the State Department of Health Care Services. Existing law authorizes a county board of supervisors to contract with a nonprofit consortium or to establish a public authority to provide those services.
This bill would additionally authorize the Statewide Authority and certain other entities to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment with representatives of recognized employee organizations for an individual who is employed by a recipient of waiver personal care services and would make conforming changes.
The bill would provide that the state, the Statewide Authority, or any county that has met specified conditions shall not be deemed to be the employer of these individuals for purposes of liability due to negligence or intentional torts of the individual provider. The bill would also provide that a public authority, as specified, shall be deemed to be the employer of providers of waiver personal care services for purposes of employer-employee relations, as specified.
(a)Notwithstanding any other provision of this chapter to the contrary, information regarding persons paid by the state to provide in-home supportive services pursuant to Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of the Welfare and Institutions Code or personal care services pursuant to Sections 14132.95 and 14132.97 of the Welfare and Institutions Code, is not subject to public disclosure pursuant to this chapter, except as provided in subdivision (b).
(b)Copies of names, addresses, home telephone numbers, personal cellular telephone numbers, and personal email addresses of persons described in subdivision (a) shall be made available, upon request, to an exclusive bargaining agent and to any labor organization seeking representation rights pursuant to subdivision (c) of Section 12301.6 or Section 12302.25 of the Welfare and Institutions Code or Chapter 10 (commencing with Section 3500) of Division 4 of Title 1. This information shall not be used by the receiving entity for any purpose other than the employee organizing, representation, and assistance activities of the labor organization.
(c)This section applies solely to individuals who provide services under the In-Home Supportive Services Program (Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of the Welfare and Institutions Code) or the Personal Care Services Program pursuant to Sections 14132.95 and 14132.97 of the Welfare and Institutions Code.
(d)Nothing in this section is intended to alter or shall be interpreted to alter the rights of parties under the Meyers-Milias-Brown Act (Chapter 10 (commencing with Section 3500) of Division 4) or any other labor relations law.
SEC. 2.Section 12301.6 of the Welfare and Institutions Code is amended to read:12301.6.(a)Notwithstanding Sections 12302 and 12302.1, a county board of supervisors may, at its option, elect to do either of the following:
(1)Contract with a nonprofit consortium to provide for the delivery of in-home supportive services and waiver personal care services.
(2)Establish, by ordinance, a public authority to provide for the delivery of in-home supportive services and waiver personal care services.
(b)(1)To the extent that a county elects to establish a public authority pursuant to paragraph (2) of subdivision (a), the enabling ordinance shall specify the membership of the governing body of the public authority, the qualifications for individual members, the manner of appointment, selection, or removal of members, how long they shall serve, and other matters as the board of supervisors deems necessary for the operation of the public authority.
(2)A public authority established pursuant to paragraph (2) of subdivision (a) shall be both of the following:
(A)An entity separate from the county, and shall be required to file the statement required by Section 53051 of the Government Code.
(B)A corporate public body, exercising public and essential governmental functions and that has all powers necessary or convenient to carry out the delivery of in-home supportive services and waiver personal care services, including the power to contract for services pursuant to Sections 12302 and 12302.1 and that makes or provides for direct payment to a provider chosen by the recipient for the purchase of services pursuant to Sections 12302 and 12302.2. Employees of the public authority shall not be employees of the county for any purpose.
(3)(A)As an alternative, the enabling ordinance may designate the board of supervisors as the governing body of the public authority.
(B)Any enabling ordinance that designates the board of supervisors as the governing body of the public authority shall also specify that no fewer than 50 percent of the membership of the advisory committee shall be individuals who are current or past users of personal assistance services paid for through public or private funds or recipients of services under this article.
(C)If the enabling ordinance designates the board of supervisors as the governing body of the public authority, it shall also require the appointment of an advisory committee of not more than 11 individuals who shall be designated in accordance with subparagraph (B).
(D)Prior to making designations of committee members pursuant to subparagraph (C), or governing body members in accordance with paragraph (4), the board of supervisors shall solicit recommendations of qualified members of either the governing body of the public authority or of any advisory committee through a fair and open process that includes the provision of reasonable written notice to, and a reasonable response time by, members of the general public and interested persons and organizations.
(4)If the enabling ordinance does not designate the board of supervisors as the governing body of the public authority, the enabling ordinance shall require the membership of the governing body to meet the requirements of subparagraph (B) of paragraph (3).
(c)(1)Any public authority created pursuant to this section shall be deemed to be the employer of in-home supportive services personnel referred to recipients under paragraph (3) of subdivision (e), and the employer of providers of waiver personal care services provided pursuant to Section 14132.97, within the meaning of Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code. Recipients shall retain the right to hire, fire, and supervise the work of any in-home supportive services personnel or waiver personal care services personnel providing services to them.
(2)(A)Any nonprofit consortium contracting with a county pursuant to this section shall be deemed to be the employer of in-home supportive services personnel and waiver personal care services personnel referred to recipients pursuant to paragraph (3) of subdivision (e) for the purposes of collective bargaining over wages, hours, and other terms and conditions of employment.
(B)Recipients shall retain the right to hire, fire, and supervise the work of any in-home supportive services personnel or waiver personal care services personnel providing services for them.
(3)To the extent permitted by federal law, wages and benefits for providers of waiver personal care services pursuant to Section 14132.97 shall be equal to the rates in each county for the individual provider mode of services in the In-Home Supportive Services (IHSS) program pursuant to this article.
(4)(A)If eligibility for benefits requires a provider to work a threshold number of hours, eligibility shall be determined based on the aggregate number of monthly hours worked between IHSS and waiver personal care services.
(B)This paragraph shall became operative on July 1, 2019, or upon an appropriation for this purpose in the annual state Budget Act for health benefit costs, whichever occurs earlier.
(d)A public authority established pursuant to this section or a nonprofit consortium contracting with a county pursuant to this section, when providing for the delivery of services under this article by contract in accordance with Sections 12302 and 12302.1, by direct payment to a provider chosen by a recipient in accordance with Sections 12302 and 12302.2, or by way of a provider of waiver personal care services provided pursuant to Section 14132.97, shall comply with and be subject to, all statutory and regulatory provisions applicable to the respective delivery mode.
(e)Any nonprofit consortium contracting with a county pursuant to this section or any public authority established pursuant to this section shall provide for all of the following functions under this article, but shall not be limited to those functions:
(1)The provision of assistance to recipients in finding in-home supportive services personnel and waiver personal care services authorized pursuant to Section 14132.97 through the establishment of a registry.
(2)(A)(i)The investigation of the qualifications and background of potential personnel. Upon the effective date of the amendments to this section made during the 200910 Fourth Extraordinary Session of the Legislature, the investigation with respect to any provider in the registry or prospective registry applicant shall include criminal background checks requested by the nonprofit consortium or public authority and conducted by the Department of Justice pursuant to Section 15660, for those public authorities or nonprofit consortia using the agencies on the effective date of the amendments to this section made during the 200910 Fourth Extraordinary Session of the Legislature. Criminal background checks shall be performed no later than July 1, 2010, for any provider who is already on the registry on the effective date of amendments to this section made during the 200910 Fourth Extraordinary Session of the Legislature, for whom a criminal background check pursuant to this section has not previously been provided, as a condition of the providers continued enrollment in the IHSS program and the program authorizing waiver personal care services pursuant to Section 14132.97. Criminal background checks shall be conducted at the providers expense.
(ii)Upon notice from the Department of Justice notifying the public authority or nonprofit consortium that the prospective registry applicant has been convicted of a criminal offense specified in Section 12305.81, the public authority or nonprofit consortium shall deny the request to be placed on the registry for providing supportive services to any recipient of in-home supportive services or waiver personal care services authorized pursuant to Section 14132.97.
(iii)Commencing 90 days after the effective date of the act that adds Section 12305.87, and upon notice from the Department of Justice that an applicant who is subject to the provisions of that section has been convicted of, or incarcerated following conviction for, an offense described in subdivision (b) of that section, the public authority or nonprofit consortium shall deny the applicants request to become a provider of supportive services to any recipient of in-home supportive services or waiver personal care services, subject to the individual waiver and exception processes described in that section. An applicant who is denied on the basis of Section 12305.87 shall be informed by the public authority or nonprofit consortium of the individual waiver and exception processes described in that section.
(B)(i)Notwithstanding any other law, the public authority or nonprofit consortium shall provide an individual with a copy of his or her state-level criminal offender record information search response as provided to the entity by the Department of Justice if the individual has been denied placement on the registry for providing supportive services to any recipient of the In-Home Supportive Services program or waiver personal care services based on this information. The copy of the state-level criminal offender record information search response shall be included with the individuals notice of denial. Along with the notice of denial, the public authority or public consortium shall also provide information in plain language on how an individual may contest the accuracy and completeness of, and refute any erroneous or inaccurate information in, his or her state-level criminal offender record information search response as provided by the Department of Justice as authorized by Section 11126 of the Penal Code. The state-level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice.
(ii)The department shall develop a written appeal process for the current and prospective providers who are determined ineligible to receive payment for the provision of services in the In-Home Supportive Services program or waiver personal care services. Notwithstanding any other law, the public authority or nonprofit consortium shall provide the department with a copy of the state-level criminal offender record information search response as provided to the entity by the Department of Justice for any individual who has requested an appeal of a denial of placement on the registry for providing supportive services to any recipient of in-home supportive services or waiver personal care services based on clause (ii) or (iii) of subparagraph (A). The state-level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice and shall be provided to the address specified by the department in its written request.
(C)This paragraph does not prohibit the Department of Justice from assessing a fee pursuant to Section 11105 or 11123 of the Penal Code to cover the cost of furnishing summary criminal history information.
(D)As used in this section, nonprofit consortium means a nonprofit public benefit corporation that has all powers necessary to carry out the delivery of in-home supportive services or waiver personal care services under the delegated authority of a government entity.
(E)A nonprofit consortium or a public authority authorized to secure a criminal background check clearance pursuant to this section shall accept a clearance for an applicant described in clause (i) of subparagraph (A) who has been deemed eligible by another nonprofit consortium, public authority, or county with criminal background check authority pursuant to either Section 12305.86 or this section, to receive payment for providing services pursuant to this article. Existence of a clearance shall be determined by verification through the case management, information, and payrolling system, that another county, nonprofit consortium, or public authority with criminal background check authority pursuant to Section 12305.86 or this section has deemed the current or prospective provider to be eligible to receive payment for providing services pursuant to this article.
(3)Establishment of a referral system under which in-home supportive services personnel or waiver personal care services personnel shall be referred to recipients.
(4)Providing for training for providers and recipients.
(5)(A)Performing any other functions related to the delivery of in-home supportive services or waiver personal care services.
(B)(i)Upon request of a recipient of in-home supportive services pursuant to this chapter, or a recipient of personal care services under the Medi-Cal program pursuant to Section 14132.95, a public authority or nonprofit consortium may provide a criminal background check on a nonregistry applicant or provider from the Department of Justice, in accordance with clause (i) of subparagraph (A) of paragraph (2) of subdivision (e). If the person who is the subject of the criminal background check is not hired or is terminated because of the information contained in the criminal background report, the provisions of subparagraph (B) of paragraph (2) of subdivision (e) shall apply.
(ii)A recipient of in-home supportive services pursuant to this chapter or a recipient of personal care services under the Medi-Cal program may elect to employ an individual as their service provider notwithstanding the individuals record of previous criminal convictions, unless those convictions include any of the offenses specified in Section 12305.81.
(6)Ensuring that the requirements of the personal care option pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code are met.
(f)(1)Any nonprofit consortium contracting with a county pursuant to this section or any public authority created pursuant to this section shall be deemed not to be the employer of in-home supportive services personnel or waiver personal care services personnel referred to recipients under this section for purposes of liability due to the negligence or intentional torts of the in-home supportive services personnel or waiver personal care services personnel.
(2)A nonprofit consortium contracting with a county pursuant to this section or any public authority created pursuant to this section is not liable for action or omission of any in-home supportive services personnel or waiver personal care services personnel whom the nonprofit consortium or public authority did not list on its registry or otherwise refer to a recipient.
(3)Counties and the state shall be immune from any liability resulting from their implementation of this section in the administration of the In-Home Supportive Services program or in the administration of waiver personal care services authorized under Section 14132.97. Any obligation of the public authority or consortium pursuant to this section, whether statutory, contractual, or otherwise, shall be the obligation solely of the public authority or nonprofit consortium, and shall not be the obligation of the county or state.
(g)Any nonprofit consortium contracting with a county pursuant to this section shall ensure that it has a governing body that complies with the requirements of subparagraph (B) of paragraph (3) of subdivision (b) or an advisory committee that complies with subparagraphs (B) and (C) of paragraph (3) of subdivision (b).
(h)Recipients of services under this section may elect to receive services from in-home supportive services personnel or waiver personal care services personnel who are not referred to them by the public authority or nonprofit consortium. Those personnel shall be referred to the public authority or nonprofit consortium for the purposes of wages, benefits, and other terms and conditions of employment.
(i)(1)This section does not affect the states responsibility with respect to the state payroll system, unemployment insurance, or workers compensation and other provisions of Section 12302.2 for providers of in-home supportive services or for individuals who are employed by a recipient of waiver personal care services authorized under Section 14132.97.
(2)The Controller shall make any deductions from the wages of in-home supportive services personnel or waiver personal care services personnel, who are employees of a public authority pursuant to paragraph (1) of subdivision (c), that are agreed to by that public authority in collective bargaining with the designated representative of the in-home supportive services personnel or waiver personal care services personnel pursuant to Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code and transfer the deducted funds as directed in that agreement.
(3)Any county that elects to provide in-home supportive services pursuant to this section shall be responsible for any increased costs to the in-home supportive services case management, information, and payrolling system attributable to that election. The department shall collaborate with any county that elects to provide in-home supportive services pursuant to this section prior to implementing the amount of financial obligation for which the county shall be responsible.
(j)To the extent permitted by federal law, personal care option funds, obtained pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code, along with matching funds using the state and county sharing ratio established in subdivision (c) of Section 12306, or any other funds that are obtained pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code, may be used to establish and operate an entity authorized by this section.
(k)Notwithstanding any other law, the county, in exercising its option to establish a public authority, shall not be subject to competitive bidding requirements. However, contracts entered into by either the county, a public authority, or a nonprofit consortium pursuant to this section shall be subject to competitive bidding as otherwise required by law.
(l)(1)The department may adopt regulations implementing this section as emergency regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. For the purposes of the Administrative Procedure Act, the adoption of the regulations shall be deemed an emergency and necessary for the immediate preservation of the public peace, health and safety, or general welfare. Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, these emergency regulations shall not be subject to the review and approval of the Office of Administrative Law.
(2)Notwithstanding subdivision (h) of Section 11346.1 and Section 11349.6 of the Government Code, the department shall transmit these regulations directly to the Secretary of State for filing. The regulations shall become effective immediately upon filing by the Secretary of State.
(3)Except as otherwise provided for by Section 10554, the Office of Administrative Law shall provide for the printing and publication of these regulations in the California Code of Regulations. Emergency regulations adopted pursuant to this subdivision shall remain in effect for no more than 180 days.
(m)(1)In the event that a county elects to form a nonprofit consortium or public authority pursuant to subdivision (a) before the State Department of Health Care Services has obtained all necessary federal approvals pursuant to paragraph (3) of subdivision (j) of Section 14132.95, all of the following shall apply:
(A)Subdivision (d) shall apply only to those matters that do not require federal approval.
(B)The second sentence of subdivision (h) shall not be operative.
(C)The nonprofit consortium or public authority shall not provide services other than those specified in paragraphs (1), (2), (3), (4), and (5) of subdivision (e).
(2)Paragraph (1) shall become inoperative when the State Department of Health Care Services has obtained all necessary federal approvals pursuant to paragraph (3) of subdivision (j) of Section 14132.95.
(n)(1)One year after the effective date of the first approval by the department granted to the first public authority, the Bureau of State Audits shall commission a study to review the performance of that public authority.
(2)The study shall be submitted to the Legislature and the Governor not later than two years after the effective date of the approval specified in subdivision (a). The study shall give special attention to the health and welfare of the recipients under the public authority, including the degree to which all required services have been delivered, out-of-home placement rates, prompt response to recipient complaints, and any other issue the director deems relevant.
(3)The report shall make recommendations to the Legislature and the Governor for any changes to this section that will further ensure the well-being of recipients and the most efficient delivery of required services.
(o)Commencing July 1, 1997, the department shall provide annual reports to the appropriate fiscal and policy committees of the Legislature on the efficacy of the implementation of this section, and shall include an assessment of the quality of care provided pursuant to this section.
(p)(1)Notwithstanding any other law, and except as provided in paragraph (2), the department shall, no later than January 1, 2009, implement subparagraphs (A) and (B) through an all-county letter from the director:
(A)Subparagraphs (A) and (B) of paragraph (2) of subdivision (e).
(B)Subparagraph (B) of paragraph (5) of subdivision (e).
(2)The department shall, no later than July 1, 2009, adopt regulations to implement subparagraphs (A) and (B) of paragraph (1).
(q)The amendments made to paragraphs (2) and (5) of subdivision (e) made by the act that added this subdivision during the 200708 Regular Session of the Legislature shall be implemented only to the extent that an appropriation is made in the annual Budget Act or other statute, except for the amendments that added subparagraph (D) of paragraph (2) of subdivision (e), which shall go into effect January 1, 2009.
SEC. 3.Section 14132.97 of the Welfare and Institutions Code is amended to read:14132.97.(a)(1)For purposes of this section, waiver personal care services means personal care services authorized by the department for persons who are eligible for either nursing or model nursing facility waiver services.
(2)Waiver personal care services shall satisfy all of the following criteria:
(A)The services shall be defined in the nursing and model nursing facility waivers.
(B)The services shall differ in scope from services that may be authorized under Section 14132.95 or 14132.952.
(C)The services shall not replace any hours of services authorized or that may be authorized under Section 14132.95 or 14132.952.
(3)The entities described in Section 12301.6, in accordance with Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code, shall be required to act as the employer to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment of individuals providing waiver personal care services.
(b)An individual may receive waiver personal care services if all of the following conditions are met:
(1)The individual has been approved by the department to receive services in accordance with a waiver approved under Section 1915(c) of the federal Social Security Act (42 U.S.C. Sec. 1396n(c)) for persons who would otherwise require care in a nursing facility.
(2)The individual has doctors orders that specify that he or she requires waiver personal care services in order to remain in his or her own home.
(3)The individual chooses, either personally or through a substitute decisionmaker who is recognized under state law for purposes of giving consent for medical treatment, to receive waiver personal care services, as well as medically necessary skilled nursing services, in order to remain in his or her own home.
(4)The waiver personal care services and all other waiver services for the individual do not result in costs that exceed the fiscal limit established under the waiver.
(c)The department shall notify the administrator of the In-Home Supportive Services program in the county of residence of any individual who meets all requirements of subdivision (b) and has been authorized by the department to receive waiver personal care services. The county of residence shall then do the following:
(1)Inform the department of the services that the individual is authorized to receive under Section 14132.95 or 14132.952 at the time he or she becomes eligible for waiver personal care services.
(2)Determine the individuals eligibility for services under Section 14132.95 or 14132.952 if he or she is not currently authorized to receive those services and if he or she has not been previously determined eligible for those services.
(3)Implement the departments authorization for waiver personal care services for the individual at the quantity and scope authorized by the department.
(d)(1)Waiver personal care services approved by the department for individuals who meet the requirements of subdivision (b) may be provided in either of the following ways, or a combination of both:
(A)By a licensed and certified home health agency participating in the Medi-Cal program.
(B)By one or more providers of personal care services under Article 7 (commencing with Section 12300) of Chapter 3 and subdivision (d) of Section 14132.95, when the individual elects, in writing, to utilize these service providers.
(2)The department shall approve waiver personal care services for individuals who meet the requirements of subdivision (b) only when the department finds that the individuals receipt of waiver personal care services is necessary in order to enable the individual to be maintained safely in his or her own home and community.
(3)When waiver personal care services are provided by a licensed and certified home health agency, the home health agency shall receive payment in the manner by which it would receive payment for any other service approved by the department.
(4)When waiver personal care services are provided by one or more providers of personal care services under Article 7 (commencing with Section 12300) of Chapter 3 and subdivision (d) of Section 14132.95, the providers shall receive payment and benefits on a schedule and in a manner by which providers of personal care services receive payment and benefits. The State Department of Social Services shall commence making payments for waiver personal care services when its payment system has been modified to accommodate those payments. A county is not obligated to administer waiver personal care services until the State Department of Social Services payment system has been modified to accommodate those payments. However, any county or public authority or nonprofit consortium that administers the In-Home Supportive Services and personal care services programs may pay providers for the delivery of waiver personal care services if it chooses to do so. In that case, the county, public authority, or nonprofit consortium shall be reimbursed by the department for the waiver personal care services authorized by the department and provided to an individual upon submittal of documentation as required by the waiver, and in accordance with the requirements of the department.
(e)Waiver personal care services shall not count as alternative resources in a countys determination of the amount of services an individual may receive under Section 14132.95 or 14132.952.
(f)Any administrative costs to the State Department of Social Services, a county, or a public authority or nonprofit consortium associated with implementing this section shall be considered administrative costs under the waiver and shall be reimbursed by the department.
(g)Two hundred fifty thousand dollars ($250,000) is appropriated from the General Fund to the State Department of Social Services for the 199899 fiscal year for the purpose of making changes to the case management, information, and payrolling system that are necessary for the implementation of this section.
(h)This section shall not be implemented until the department has obtained federal approval of any necessary amendments to the existing nursing facility and model nursing facility waivers and the state plan under Title 19 of the federal Social Security Act (42 U.S.C. Sec. 1396 et seq.). Any amendments to the existing nursing facility and model nursing facility waivers and the state plan which are deemed to be necessary by the director shall be submitted to the federal Health Care Financing Administration by April 1, 1999.
(i)The department shall implement this section only to the extent that its implementation results in fiscal neutrality, as required under the terms of the waivers.
SEC. 4.The Legislature finds and declares that Section 1 of this act, which amends Section 6253.2 of the Government Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect the privacy and well-being of state and local employees paid by the state to provide waiver personal care services, it is necessary to limit general access to information regarding those persons.
(a)Notwithstanding any other provision of this chapter to the contrary, information regarding persons paid by the state to provide in-home supportive services pursuant to Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of the Welfare and Institutions Code or personal care services pursuant to Section 14132.95 Sections 14132.95 and 14132.97 of the Welfare and Institutions Code, is not subject to public disclosure pursuant to this chapter, except as provided in subdivision (b).
(b)Copies of names, addresses, home telephone numbers, personal cellular telephone numbers, and personal email addresses of persons described in subdivision (a) shall be made available, upon request, to an exclusive bargaining agent and to any labor organization seeking representation rights pursuant to subdivision (c) of Section 12301.6 or Section 12302.25 of the Welfare and Institutions Code or Chapter 10 (commencing with Section 3500) of Division 4 of Title 1. This information shall not be used by the receiving entity for any purpose other than the employee organizing, representation, and assistance activities of the labor organization.
(c)This section applies solely to individuals who provide services under the In-Home Supportive Services Program (Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of the Welfare and Institutions Code) or the Personal Care Services Program pursuant to Section 14132.95 Sections 14132.95 and 14132.97 of the Welfare and Institutions Code.
(d)Nothing in this section is intended to alter or shall be interpreted to alter the rights of parties under the Meyers-Milias-Brown Act (Chapter 10 (commencing with Section 3500) of Division 4) or any other labor relations law.
SECTION 1.SEC. 2.Section 12301.6 of the Welfare and Institutions Code is amended to read:12301.6.(a)Notwithstanding Sections 12302 and 12302.1, a county board of supervisors may, at its option, elect to do either of the following:
(1)Contract with a nonprofit consortium to provide for the delivery of in-home supportive services and waiver personal care services.
(2)Establish, by ordinance, a public authority to provide for the delivery of in-home supportive services and waiver personal care services.
(b)(1)To the extent that a county elects to establish a public authority pursuant to paragraph (2) of subdivision (a), the enabling ordinance shall specify the membership of the governing body of the public authority, the qualifications for individual members, the manner of appointment, selection, or removal of members, how long they shall serve, and other matters as the board of supervisors deems necessary for the operation of the public authority.
(2)A public authority established pursuant to paragraph (2) of subdivision (a) shall be both of the following:
(A)An entity separate from the county, and shall be required to file the statement required by Section 53051 of the Government Code.
(B)A corporate public body, exercising public and essential governmental functions and that has all powers necessary or convenient to carry out the delivery of in-home supportive services and waiver personal care services, including the power to contract for services pursuant to Sections 12302 and 12302.1 and that makes or provides for direct payment to a provider chosen by the recipient for the purchase of services pursuant to Sections 12302 and 12302.2. Employees of the public authority shall not be employees of the county for any purpose.
(3)(A)As an alternative, the enabling ordinance may designate the board of supervisors as the governing body of the public authority.
(B)Any enabling ordinance that designates the board of supervisors as the governing body of the public authority shall also specify that no fewer than 50 percent of the membership of the advisory committee shall be individuals who are current or past users of personal assistance services paid for through public or private funds or recipients of services under this article.
(C)If the enabling ordinance designates the board of supervisors as the governing body of the public authority, it shall also require the appointment of an advisory committee of not more than 11 individuals who shall be designated in accordance with subparagraph (B).
(D)Prior to making designations of committee members pursuant to subparagraph (C), or governing body members in accordance with paragraph (4), the board of supervisors shall solicit recommendations of qualified members of either the governing body of the public authority or of any advisory committee through a fair and open process that includes the provision of reasonable written notice to, and a reasonable response time by, members of the general public and interested persons and organizations.
(4)If the enabling ordinance does not designate the board of supervisors as the governing body of the public authority, the enabling ordinance shall require the membership of the governing body to meet the requirements of subparagraph (B) of paragraph (3).
(c)(1)Any public authority created pursuant to this section shall be deemed to be the employer of in-home supportive services personnel referred to recipients under paragraph (3) of subdivision (e), and the employer of providers of waiver personal care services provided pursuant to Section 14132.97, within the meaning of Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code. Recipients shall retain the right to hire, fire, and supervise the work of any in-home supportive services personnel or waiver personal care services personnel providing services to them.
(2)(A)Any nonprofit consortium contracting with a county pursuant to this section shall be deemed to be the employer of in-home supportive services personnel and waiver personal care services personnel referred to recipients pursuant to paragraph (3) of subdivision (e) for the purposes of collective bargaining over wages, hours, and other terms and conditions of employment.
(B)Recipients shall retain the right to hire, fire, and supervise the work of any in-home supportive services personnel or waiver personal care services personnel providing services for them.
(3)To the extent permitted by federal law, wages and benefits for providers of waiver personal care services pursuant to Section 14132.97 shall be equal to the rates in each county for the individual provider mode of services in the In-Home Supportive Services (IHSS) program pursuant to this article.
(4)(A)If eligibility for benefits requires a provider to work a threshold number of hours, eligibility shall be determined based on the aggregate number of monthly hours worked between IHSS and waiver personal care services.
(B)This paragraph shall became operative on July 1, 2019, or upon an appropriation for this purpose in the annual state Budget Act for health benefit costs, whichever occurs earlier.
(d)A public authority established pursuant to this section or a nonprofit consortium contracting with a county pursuant to this section, when providing for the delivery of services under this article by contract in accordance with Sections 12302 and 12302.1, by direct payment to a provider chosen by a recipient in accordance with Sections 12302 and 12302.2, or by way of a provider of waiver personal care services provided pursuant to Section 14132.97, shall comply with and be subject to, all statutory and regulatory provisions applicable to the respective delivery mode.
(e)Any nonprofit consortium contracting with a county pursuant to this section or any public authority established pursuant to this section shall provide for all of the following functions under this article, but shall not be limited to those functions:
(1)The provision of assistance to recipients in finding in-home supportive services personnel and waiver personal care services authorized pursuant to Section 14132.97 through the establishment of a registry.
(2)(A)(i)The investigation of the qualifications and background of potential personnel. Upon the effective date of the amendments to this section made during the 200910 Fourth Extraordinary Session of the Legislature, the investigation with respect to any provider in the registry or prospective registry applicant shall include criminal background checks requested by the nonprofit consortium or public authority and conducted by the Department of Justice pursuant to Section 15660, for those public authorities or nonprofit consortia using the agencies on the effective date of the amendments to this section made during the 200910 Fourth Extraordinary Session of the Legislature. Criminal background checks shall be performed no later than July 1, 2010, for any provider who is already on the registry on the effective date of amendments to this section made during the 200910 Fourth Extraordinary Session of the Legislature, for whom a criminal background check pursuant to this section has not previously been provided, as a condition of the providers continued enrollment in the IHSS program and the program authorizing waiver personal care services pursuant to Section 14132.97. Criminal background checks shall be conducted at the providers expense.
(ii)Upon notice from the Department of Justice notifying the public authority or nonprofit consortium that the prospective registry applicant has been convicted of a criminal offense specified in Section 12305.81, the public authority or nonprofit consortium shall deny the request to be placed on the registry for providing supportive services to any recipient of in-home supportive services or waiver personal care services authorized pursuant to Section 14132.97.
(iii)Commencing 90 days after the effective date of the act that adds Section 12305.87, and upon notice from the Department of Justice that an applicant who is subject to the provisions of that section has been convicted of, or incarcerated following conviction for, an offense described in subdivision (b) of that section, the public authority or nonprofit consortium shall deny the applicants request to become a provider of supportive services to any recipient of in-home supportive services or waiver personal care services, subject to the individual waiver and exception processes described in that section. An applicant who is denied on the basis of Section 12305.87 shall be informed by the public authority or nonprofit consortium of the individual waiver and exception processes described in that section.
(B)(i)Notwithstanding any other law, the public authority or nonprofit consortium shall provide an individual with a copy of his or her state-level criminal offender record information search response as provided to the entity by the Department of Justice if the individual has been denied placement on the registry for providing supportive services to any recipient of the In-Home Supportive Services program or waiver personal care services based on this information. The copy of the state-level criminal offender record information search response shall be included with the individuals notice of denial. Along with the notice of denial, the public authority or public consortium shall also provide information in plain language on how an individual may contest the accuracy and completeness of, and refute any erroneous or inaccurate information in, his or her state-level criminal offender record information search response as provided by the Department of Justice as authorized by Section 11126 of the Penal Code. The state-level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice.
(ii)The department shall develop a written appeal process for the current and prospective providers who are determined ineligible to receive payment for the provision of services in the In-Home Supportive Services program or waiver personal care services. Notwithstanding any other law, the public authority or nonprofit consortium shall provide the department with a copy of the state-level criminal offender record information search response as provided to the entity by the Department of Justice for any individual who has requested an appeal of a denial of placement on the registry for providing supportive services to any recipient of in-home supportive services or waiver personal care services based on clause (ii) or (iii) of subparagraph (A). The state-level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice and shall be provided to the address specified by the department in its written request.
(C)This paragraph does not prohibit the Department of Justice from assessing a fee pursuant to Section 11105 or 11123 of the Penal Code to cover the cost of furnishing summary criminal history information.
(D)As used in this section, nonprofit consortium means a nonprofit public benefit corporation that has all powers necessary to carry out the delivery of in-home supportive services or waiver personal care services under the delegated authority of a government entity.
(E)A nonprofit consortium or a public authority authorized to secure a criminal background check clearance pursuant to this section shall accept a clearance for an applicant described in clause (i) of subparagraph (A) who has been deemed eligible by another nonprofit consortium, public authority, or county with criminal background check authority pursuant to either Section 12305.86 or this section, to receive payment for providing services pursuant to this article. Existence of a clearance shall be determined by verification through the case management, information, and payrolling system, that another county, nonprofit consortium, or public authority with criminal background check authority pursuant to Section 12305.86 or this section has deemed the current or prospective provider to be eligible to receive payment for providing services pursuant to this article.
(3)Establishment of a referral system under which in-home supportive services personnel or waiver personal care services personnel shall be referred to recipients.
(4)Providing for training for providers and recipients.
(5)(A)Performing any other functions related to the delivery of in-home supportive services or waiver personal care services.
(B)(i)Upon request of a recipient of in-home supportive services pursuant to this chapter, or a recipient of personal care services under the Medi-Cal program pursuant to Section 14132.95, a public authority or nonprofit consortium may provide a criminal background check on a nonregistry applicant or provider from the Department of Justice, in accordance with clause (i) of subparagraph (A) of paragraph (2) of subdivision (e). If the person who is the subject of the criminal background check is not hired or is terminated because of the information contained in the criminal background report, the provisions of subparagraph (B) of paragraph (2) of subdivision (e) shall apply.
(ii)A recipient of in-home supportive services pursuant to this chapter or a recipient of personal care services under the Medi-Cal program may elect to employ an individual as their service provider notwithstanding the individuals record of previous criminal convictions, unless those convictions include any of the offenses specified in Section 12305.81.
(6)Ensuring that the requirements of the personal care option pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code are met.
(f)(1)Any nonprofit consortium contracting with a county pursuant to this section or any public authority created pursuant to this section shall be deemed not to be the employer of in-home supportive services personnel or waiver personal care services personnel referred to recipients under this section for purposes of liability due to the negligence or intentional torts of the in-home supportive services personnel or waiver personal care services personnel.
(2)A nonprofit consortium contracting with a county pursuant to this section or any public authority created pursuant to this section is not liable for action or omission of any in-home supportive services personnel or waiver personal care services personnel whom the nonprofit consortium or public authority did not list on its registry or otherwise refer to a recipient.
(3)Counties and the state shall be immune from any liability resulting from their implementation of this section in the administration of the In-Home Supportive Services program or in the administration of waiver personal care services authorized under Section 14132.97. Any obligation of the public authority or consortium pursuant to this section, whether statutory, contractual, or otherwise, shall be the obligation solely of the public authority or nonprofit consortium, and shall not be the obligation of the county or state.
(g)Any nonprofit consortium contracting with a county pursuant to this section shall ensure that it has a governing body that complies with the requirements of subparagraph (B) of paragraph (3) of subdivision (b) or an advisory committee that complies with subparagraphs (B) and (C) of paragraph (3) of subdivision (b).
(h)Recipients of services under this section may elect to receive services from in-home supportive services personnel or waiver personal care services personnel who are not referred to them by the public authority or nonprofit consortium. Those personnel shall be referred to the public authority or nonprofit consortium for the purposes of wages, benefits, and other terms and conditions of employment.
(i)(1)This section does not affect the states responsibility with respect to the state payroll system, unemployment insurance, or workers compensation and other provisions of Section 12302.2 for providers of in-home supportive services or for individuals who are employed by a recipient of waiver personal care services authorized under Section 14132.97.
(2)The Controller shall make any deductions from the wages of in-home supportive services personnel or waiver personal care services personnel, who are employees of a public authority pursuant to paragraph (1) of subdivision (c), that are agreed to by that public authority in collective bargaining with the designated representative of the in-home supportive services personnel or waiver personal care services personnel pursuant to Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code and transfer the deducted funds as directed in that agreement.
(3)Any county that elects to provide in-home supportive services pursuant to this section shall be responsible for any increased costs to the in-home supportive services case management, information, and payrolling system attributable to that election. The department shall collaborate with any county that elects to provide in-home supportive services pursuant to this section prior to implementing the amount of financial obligation for which the county shall be responsible.
(j)To the extent permitted by federal law, personal care option funds, obtained pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code, along with matching funds using the state and county sharing ratio established in subdivision (c) of Section 12306, or any other funds that are obtained pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code, may be used to establish and operate an entity authorized by this section.
(k)Notwithstanding any other law, the county, in exercising its option to establish a public authority, shall not be subject to competitive bidding requirements. However, contracts entered into by either the county, a public authority, or a nonprofit consortium pursuant to this section shall be subject to competitive bidding as otherwise required by law.
(l)(1)The department may adopt regulations implementing this section as emergency regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. For the purposes of the Administrative Procedure Act, the adoption of the regulations shall be deemed an emergency and necessary for the immediate preservation of the public peace, health and safety, or general welfare. Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, these emergency regulations shall not be subject to the review and approval of the Office of Administrative Law.
(2)Notwithstanding subdivision (h) of Section 11346.1 and Section 11349.6 of the Government Code, the department shall transmit these regulations directly to the Secretary of State for filing. The regulations shall become effective immediately upon filing by the Secretary of State.
(3)Except as otherwise provided for by Section 10554, the Office of Administrative Law shall provide for the printing and publication of these regulations in the California Code of Regulations. Emergency regulations adopted pursuant to this subdivision shall remain in effect for no more than 180 days.
(m)(1)In the event that a county elects to form a nonprofit consortium or public authority pursuant to subdivision (a) before the State Department of Health Care Services has obtained all necessary federal approvals pursuant to paragraph (3) of subdivision (j) of Section 14132.95, all of the following shall apply:
(A)Subdivision (d) shall apply only to those matters that do not require federal approval.
(B)The second sentence of subdivision (h) shall not be operative.
(C)The nonprofit consortium or public authority shall not provide services other than those specified in paragraphs (1), (2), (3), (4), and (5) of subdivision (e).
(2)Paragraph (1) shall become inoperative when the State Department of Health Care Services has obtained all necessary federal approvals pursuant to paragraph (3) of subdivision (j) of Section 14132.95.
(n)(1)One year after the effective date of the first approval by the department granted to the first public authority, the Bureau of State Audits shall commission a study to review the performance of that public authority.
(2)The study shall be submitted to the Legislature and the Governor not later than two years after the effective date of the approval specified in subdivision (a). The study shall give special attention to the health and welfare of the recipients under the public authority, including the degree to which all required services have been delivered, out-of-home placement rates, prompt response to recipient complaints, and any other issue the director deems relevant.
(3)The report shall make recommendations to the Legislature and the Governor for any changes to this section that will further ensure the well-being of recipients and the most efficient delivery of required services.
(o)Commencing July 1, 1997, the department shall provide annual reports to the appropriate fiscal and policy committees of the Legislature on the efficacy of the implementation of this section, and shall include an assessment of the quality of care provided pursuant to this section.
(p)(1)Notwithstanding any other law, and except as provided in paragraph (2), the department shall, no later than January 1, 2009, implement subparagraphs (A) and (B) through an all-county letter from the director:
(A)Subparagraphs (A) and (B) of paragraph (2) of subdivision (e).
(B)Subparagraph (B) of paragraph (5) of subdivision (e).
(2)The department shall, no later than July 1, 2009, adopt regulations to implement subparagraphs (A) and (B) of paragraph (1).
(q)The amendments made to paragraphs (2) and (5) of subdivision (e) made by the act that added this subdivision during the 200708 Regular Session of the Legislature shall be implemented only to the extent that an appropriation is made in the annual Budget Act or other statute, except for the amendments that added subparagraph (D) of paragraph (2) of subdivision (e), which shall go into effect January 1, 2009.
SEC. 2.SEC. 3.Section 14132.97 of the Welfare and Institutions Code is amended to read:14132.97.(a)(1)For purposes of this section, waiver personal care services means personal care services authorized by the department for persons who are eligible for either nursing or model nursing facility waiver services.
(2)Waiver personal care services shall satisfy all of the following criteria:
(A)The services shall be defined in the nursing and model nursing facility waivers.
(B)The services shall differ in scope from services that may be authorized under Section 14132.95 or 14132.952.
(C)The services shall not replace any hours of services authorized or that may be authorized under Section 14132.95 or 14132.952.
(3)The entities described in Section 12301.6, in accordance with Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code, shall be required to act as the employer to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment of individuals providing waiver personal care services.
(b)An individual may receive waiver personal care services if all of the following conditions are met:
(1)The individual has been approved by the department to receive services in accordance with a waiver approved under Section 1915(c) of the federal Social Security Act (42 U.S.C. Sec. 1396n(c)) for persons who would otherwise require care in a nursing facility.
(2)The individual has doctors orders that specify that he or she requires waiver personal care services in order to remain in his or her own home.
(3)The individual chooses, either personally or through a substitute decisionmaker who is recognized under state law for purposes of giving consent for medical treatment, to receive waiver personal care services, as well as medically necessary skilled nursing services, in order to remain in his or her own home.
(4)The waiver personal care services and all other waiver services for the individual do not result in costs that exceed the fiscal limit established under the waiver.
(c)The department shall notify the administrator of the In-Home Supportive Services program in the county of residence of any individual who meets all requirements of subdivision (b) and has been authorized by the department to receive waiver personal care services. The county of residence shall then do the following:
(1)Inform the department of the services that the individual is authorized to receive under Section 14132.95 or 14132.952 at the time he or she becomes eligible for waiver personal care services.
(2)Determine the individuals eligibility for services under Section 14132.95 or 14132.952 if he or she is not currently authorized to receive those services and if he or she has not been previously determined eligible for those services.
(3)Implement the departments authorization for waiver personal care services for the individual at the quantity and scope authorized by the department.
(d)(1)Waiver personal care services approved by the department for individuals who meet the requirements of subdivision (b) may be provided in either of the following ways, or a combination of both:
(A)By a licensed and certified home health agency participating in the Medi-Cal program.
(B)By one or more providers of personal care services under Article 7 (commencing with Section 12300) of Chapter 3 and subdivision (d) of Section 14132.95, when the individual elects, in writing, to utilize these service providers.
(2)The department shall approve waiver personal care services for individuals who meet the requirements of subdivision (b) only when the department finds that the individuals receipt of waiver personal care services is necessary in order to enable the individual to be maintained safely in his or her own home and community.
(3)When waiver personal care services are provided by a licensed and certified home health agency, the home health agency shall receive payment in the manner by which it would receive payment for any other service approved by the department.
(4)When waiver personal care services are provided by one or more providers of personal care services under Article 7 (commencing with Section 12300) of Chapter 3 and subdivision (d) of Section 14132.95, the providers shall receive payment and benefits on a schedule and in a manner by which providers of personal care services receive payment. payment and benefits. The State Department of Social Services shall commence making payments for waiver personal care services when its payment system has been modified to accommodate those payments. A county is not obligated to administer waiver personal care services until the State Department of Social Services payment system has been modified to accommodate those payments. However, any county or public authority or nonprofit consortium that administers the In-Home Supportive Services and personal care services programs may pay providers for the delivery of waiver personal care services if it chooses to do so. In that case, the county, public authority, or nonprofit consortium shall be reimbursed by the department for the waiver personal care services authorized by the department and provided to an individual upon submittal of documentation as required by the waiver, and in accordance with the requirements of the department.
(e)Waiver personal care services shall not count as alternative resources in a countys determination of the amount of services an individual may receive under Section 14132.95 or 14132.952.
(f)Any administrative costs to the State Department of Social Services, a county, or a public authority or nonprofit consortium associated with implementing this section shall be considered administrative costs under the waiver and shall be reimbursed by the department.
(g)Two hundred fifty thousand dollars ($250,000) is appropriated from the General Fund to the State Department of Social Services for the 199899 fiscal year for the purpose of making changes to the case management, information, and payrolling system that are necessary for the implementation of this section.
(h)This section shall not be implemented until the department has obtained federal approval of any necessary amendments to the existing nursing facility and model nursing facility waivers and the state plan under Title 19 of the federal Social Security Act (42 U.S.C. Sec. 1396 et seq.). Any amendments to the existing nursing facility and model nursing facility waivers and the state plan which are deemed to be necessary by the director shall be submitted to the federal Health Care Financing Administration by April 1, 1999.
(i)The department shall implement this section only to the extent that its implementation results in fiscal neutrality, as required under the terms of the waivers.
SEC. 4.The Legislature finds and declares that Section 1 of this act, which amends Section 6253.2 of the Government Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect the privacy and well-being of state and local employees paid by the state to provide waiver personal care services, it is necessary to limit general access to information regarding those persons.
(a)Notwithstanding Sections 12302 and 12302.1, a county board of supervisors may, at its option, elect to do either of the following:
(1)Contract with a nonprofit consortium to provide for the delivery of in-home supportive services and waiver personal care services.
(2)Establish, by ordinance, a public authority to provide for the delivery of in-home supportive services and waiver personal care services.
(b)(1)To the extent that a county elects to establish a public authority pursuant to paragraph (2) of subdivision (a), the enabling ordinance shall specify the membership of the governing body of the public authority, the qualifications for individual members, the manner of appointment, selection, or removal of members, how long they shall serve, and other matters as the board of supervisors deems necessary for the operation of the public authority.
(2)A public authority established pursuant to paragraph (2) of subdivision (a) shall be both of the following:
(A)An entity separate from the county, and shall be required to file the statement required by Section 53051 of the Government Code.
(B)A corporate public body, exercising public and essential governmental functions and that has all powers necessary or convenient to carry out the delivery of in-home supportive services and waiver personal care services, including the power to contract for services pursuant to Sections 12302 and 12302.1 and that makes or provides for direct payment to a provider chosen by the recipient for the purchase of services pursuant to Sections 12302 and 12302.2. Employees of the public authority shall not be employees of the county for any purpose.
(3)(A)As an alternative, the enabling ordinance may designate the board of supervisors as the governing body of the public authority.
(B)Any enabling ordinance that designates the board of supervisors as the governing body of the public authority shall also specify that no fewer than 50 percent of the membership of the advisory committee shall be individuals who are current or past users of personal assistance services paid for through public or private funds or recipients of services under this article.
(C)If the enabling ordinance designates the board of supervisors as the governing body of the public authority, it shall also require the appointment of an advisory committee of not more than 11 individuals who shall be designated in accordance with subparagraph (B).
(D)Prior to making designations of committee members pursuant to subparagraph (C), or governing body members in accordance with paragraph (4), the board of supervisors shall solicit recommendations of qualified members of either the governing body of the public authority or of any advisory committee through a fair and open process that includes the provision of reasonable written notice to, and a reasonable response time by, members of the general public and interested persons and organizations.
(4)If the enabling ordinance does not designate the board of supervisors as the governing body of the public authority, the enabling ordinance shall require the membership of the governing body to meet the requirements of subparagraph (B) of paragraph (3).
(c)(1)Any public authority created pursuant to this section shall be deemed to be the employer of in-home supportive services personnel referred to recipients under paragraph (3) of subdivision (e), and the employer of providers of waiver personal care services provided pursuant to Section 14132.97, within the meaning of Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code. Recipients shall retain the right to hire, fire, and supervise the work of any in-home supportive services personnel or waiver personal care services personnel providing services to them.
(2)(A)Any nonprofit consortium contracting with a county pursuant to this section shall be deemed to be the employer of in-home supportive services personnel and waiver personal care services personnel referred to recipients pursuant to paragraph (3) of subdivision (e) for the purposes of collective bargaining over wages, hours, and other terms and conditions of employment.
(B)Recipients shall retain the right to hire, fire, and supervise the work of any in-home supportive services personnel or waiver personal care services personnel providing services for them.
(d)A public authority established pursuant to this section or a nonprofit consortium contracting with a county pursuant to this section, when providing for the delivery of services under this article by contract in accordance with Sections 12302 and 12302.1, by direct payment to a provider chosen by a recipient in accordance with Sections 12302 and 12302.2, or by way of a provider of waiver personal care services provided pursuant to Section 14132.97, shall comply with and be subject to, all statutory and regulatory provisions applicable to the respective delivery mode.
(e)Any nonprofit consortium contracting with a county pursuant to this section or any public authority established pursuant to this section shall provide for all of the following functions under this article, but shall not be limited to those functions:
(1)The provision of assistance to recipients in finding in-home supportive services personnel and waiver personal care services authorized pursuant to Section 14132.97 through the establishment of a registry.
(2)(A)(i)The investigation of the qualifications and background of potential personnel. Upon the effective date of the amendments to this section made during the 200910 Fourth Extraordinary Session of the Legislature, the investigation with respect to any provider in the registry or prospective registry applicant shall include criminal background checks requested by the nonprofit consortium or public authority and conducted by the Department of Justice pursuant to Section 15660, for those public authorities or nonprofit consortia using the agencies on the effective date of the amendments to this section made during the 200910 Fourth Extraordinary Session of the Legislature. Criminal background checks shall be performed no later than July 1, 2010, for any provider who is already on the registry on the effective date of amendments to this section made during the 200910 Fourth Extraordinary Session of the Legislature, for whom a criminal background check pursuant to this section has not previously been provided, as a condition of the providers continued enrollment in the IHSS program and the program authorizing waiver personal care services pursuant to Section 14132.97. Criminal background checks shall be conducted at the providers expense.
(ii)Upon notice from the Department of Justice notifying the public authority or nonprofit consortium that the prospective registry applicant has been convicted of a criminal offense specified in Section 12305.81, the public authority or nonprofit consortium shall deny the request to be placed on the registry for providing supportive services to any recipient of in-home supportive services or waiver personal care services authorized pursuant to Section 14132.97.
(iii)Commencing 90 days after the effective date of the act that adds Section 12305.87, and upon notice from the Department of Justice that an applicant who is subject to the provisions of that section has been convicted of, or incarcerated following conviction for, an offense described in subdivision (b) of that section, the public authority or nonprofit consortium shall deny the applicants request to become a provider of supportive services to any recipient of in-home supportive services or waiver personal care services, subject to the individual waiver and exception processes described in that section. An applicant who is denied on the basis of Section 12305.87 shall be informed by the public authority or nonprofit consortium of the individual waiver and exception processes described in that section.
(B)(i)Notwithstanding any other law, the public authority or nonprofit consortium shall provide an individual with a copy of his or her state-level criminal offender record information search response as provided to the entity by the Department of Justice if the individual has been denied placement on the registry for providing supportive services to any recipient of the In-Home Supportive Services program or waiver personal care services based on this information. The copy of the state-level criminal offender record information search response shall be included with the individuals notice of denial. Along with the notice of denial, the public authority or public consortium shall also provide information in plain language on how an individual may contest the accuracy and completeness of, and refute any erroneous or inaccurate information in, his or her state-level criminal offender record information search response as provided by the Department of Justice as authorized by Section 11126 of the Penal Code. The state-level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice.
(ii)The department shall develop a written appeal process for the current and prospective providers who are determined ineligible to receive payment for the provision of services in the In-Home Supportive Services program or waiver personal care services. Notwithstanding any other law, the public authority or nonprofit consortium shall provide the department with a copy of the state-level criminal offender record information search response as provided to the entity by the Department of Justice for any individual who has requested an appeal of a denial of placement on the registry for providing supportive services to any recipient of in-home supportive services or waiver personal care services based on clause (ii) or (iii) of subparagraph (A). The state-level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice and shall be provided to the address specified by the department in its written request.
(C)This paragraph shall not be construed to does not prohibit the Department of Justice from assessing a fee pursuant to Section 11105 or 11123 of the Penal Code to cover the cost of furnishing summary criminal history information.
(D)As used in this section, nonprofit consortium means a nonprofit public benefit corporation that has all powers necessary to carry out the delivery of in-home supportive services or waiver personal care services under the delegated authority of a government entity.
(E)A nonprofit consortium or a public authority authorized to secure a criminal background check clearance pursuant to this section shall accept a clearance for an applicant described in clause (i) of subparagraph (A) who has been deemed eligible by another nonprofit consortium, public authority, or county with criminal background check authority pursuant to either Section 12305.86 or this section, to receive payment for providing services pursuant to this article. Existence of a clearance shall be determined by verification through the case management, information, and payrolling system, that another county, nonprofit consortium, or public authority with criminal background check authority pursuant to Section 12305.86 or this section has deemed the current or prospective provider to be eligible to receive payment for providing services pursuant to this article.
(3)Establishment of a referral system under which in-home supportive services personnel or waiver personal care services personnel shall be referred to recipients.
(4)Providing for training for providers and recipients.
(5)(A)Performing any other functions related to the delivery of in-home supportive services or waiver personal care services.
(B)(i)Upon request of a recipient of in-home supportive services pursuant to this chapter, or a recipient of personal care services under the Medi-Cal program pursuant to Section 14132.95, a public authority or nonprofit consortium may provide a criminal background check on a nonregistry applicant or provider from the Department of Justice, in accordance with clause (i) of subparagraph (A) of paragraph (2) of subdivision (e). If the person who is the subject of the criminal background check is not hired or is terminated because of the information contained in the criminal background report, the provisions of subparagraph (B) of paragraph (2) of subdivision (e) shall apply.
(ii)A recipient of in-home supportive services pursuant to this chapter or a recipient of personal care services under the Medi-Cal program may elect to employ an individual as their service provider notwithstanding the individuals record of previous criminal convictions, unless those convictions include any of the offenses specified in Section 12305.81.
(6)Ensuring that the requirements of the personal care option pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code are met.
(f)(1)Any nonprofit consortium contracting with a county pursuant to this section or any public authority created pursuant to this section shall be deemed not to be the employer of in-home supportive services personnel or waiver personal care services personnel referred to recipients under this section for purposes of liability due to the negligence or intentional torts of the in-home supportive services personnel or waiver personal care services personnel.
(2)In no case shall a A nonprofit consortium contracting with a county pursuant to this section or any public authority created pursuant to this section be held is not liable for action or omission of any in-home supportive services personnel or waiver personal care services personnel whom the nonprofit consortium or public authority did not list on its registry or otherwise refer to a recipient.
(3)Counties and the state shall be immune from any liability resulting from their implementation of this section in the administration of the In-Home Supportive Services program or in the administration of waiver personal care services authorized under Section 14132.97. Any obligation of the public authority or consortium pursuant to this section, whether statutory, contractual, or otherwise, shall be the obligation solely of the public authority or nonprofit consortium, and shall not be the obligation of the county or state.
(g)Any nonprofit consortium contracting with a county pursuant to this section shall ensure that it has a governing body that complies with the requirements of subparagraph (B) of paragraph (3) of subdivision (b) or an advisory committee that complies with subparagraphs (B) and (C) of paragraph (3) of subdivision (b).
(h)Recipients of services under this section may elect to receive services from in-home supportive services personnel or waiver personal care services personnel who are not referred to them by the public authority or nonprofit consortium. Those personnel shall be referred to the public authority or nonprofit consortium for the purposes of wages, benefits, and other terms and conditions of employment.
(i)(1)Nothing in this section shall be construed to This section does not affect the states responsibility with respect to the state payroll system, unemployment insurance, or workers compensation and other provisions of Section 12302.2 for providers of in-home supportive services or for individuals who are employed by a recipient of waiver personal care services authorized under Section 14132.97.
(2)The Controller shall make any deductions from the wages of in-home supportive services personnel or waiver personal care services personnel, who are employees of a public authority pursuant to paragraph (1) of subdivision (c), that are agreed to by that public authority in collective bargaining with the designated representative of the in-home supportive services personnel or waiver personal care services personnel pursuant to Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code and transfer the deducted funds as directed in that agreement.
(3)Any county that elects to provide in-home supportive services pursuant to this section shall be responsible for any increased costs to the in-home supportive services case management, information, and payrolling system attributable to that election. The department shall collaborate with any county that elects to provide in-home supportive services pursuant to this section prior to implementing the amount of financial obligation for which the county shall be responsible.
(j)To the extent permitted by federal law, personal care option funds, obtained pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code, along with matching funds using the state and county sharing ratio established in subdivision (c) of Section 12306, or any other funds that are obtained pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code, may be used to establish and operate an entity authorized by this section.
(k)Notwithstanding any other law, the county, in exercising its option to establish a public authority, shall not be subject to competitive bidding requirements. However, contracts entered into by either the county, a public authority, or a nonprofit consortium pursuant to this section shall be subject to competitive bidding as otherwise required by law.
(l)(1)The department may adopt regulations implementing this section as emergency regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. For the purposes of the Administrative Procedure Act, the adoption of the regulations shall be deemed an emergency and necessary for the immediate preservation of the public peace, health and safety, or general welfare. Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, these emergency regulations shall not be subject to the review and approval of the Office of Administrative Law.
(2)Notwithstanding subdivision (h) of Section 11346.1 and Section 11349.6 of the Government Code, the department shall transmit these regulations directly to the Secretary of State for filing. The regulations shall become effective immediately upon filing by the Secretary of State.
(3)Except as otherwise provided for by Section 10554, the Office of Administrative Law shall provide for the printing and publication of these regulations in the California Code of Regulations. Emergency regulations adopted pursuant to this subdivision shall remain in effect for no more than 180 days.
(m)(1)In the event that a county elects to form a nonprofit consortium or public authority pursuant to subdivision (a) before the State Department of Health Care Services has obtained all necessary federal approvals pursuant to paragraph (3) of subdivision (j) of Section 14132.95, all of the following shall apply:
(A)Subdivision (d) shall apply only to those matters that do not require federal approval.
(B)The second sentence of subdivision (h) shall not be operative.
(C)The nonprofit consortium or public authority shall not provide services other than those specified in paragraphs (1), (2), (3), (4), and (5) of subdivision (e).
(2)Paragraph (1) shall become inoperative when the State Department of Health Care Services has obtained all necessary federal approvals pursuant to paragraph (3) of subdivision (j) of Section 14132.95.
(n)(1)One year after the effective date of the first approval by the department granted to the first public authority, the Bureau of State Audits shall commission a study to review the performance of that public authority.
(2)The study shall be submitted to the Legislature and the Governor not later than two years after the effective date of the approval specified in subdivision (a). The study shall give special attention to the health and welfare of the recipients under the public authority, including the degree to which all required services have been delivered, out-of-home placement rates, prompt response to recipient complaints, and any other issue the director deems relevant.
(3)The report shall make recommendations to the Legislature and the Governor for any changes to this section that will further ensure the well-being of recipients and the most efficient delivery of required services.
(o)Commencing July 1, 1997, the department shall provide annual reports to the appropriate fiscal and policy committees of the Legislature on the efficacy of the implementation of this section, and shall include an assessment of the quality of care provided pursuant to this section.
(p)(1)Notwithstanding any other law, and except as provided in paragraph (2), the department shall, no later than January 1, 2009, implement subparagraphs (A) and (B) through an all-county letter from the director:
(A)Subparagraphs (A) and (B) of paragraph (2) of subdivision (e).
(B)Subparagraph (B) of paragraph (5) of subdivision (e).
(2)The department shall, no later than July 1, 2009, adopt regulations to implement subparagraphs (A) and (B) of paragraph (1).
(q)The amendments made to paragraphs (2) and (5) of subdivision (e) made by the act that added this subdivision during the 200708 Regular Session of the Legislature shall be implemented only to the extent that an appropriation is made in the annual Budget Act or other statute, except for the amendments that added subparagraph (D) of paragraph (2) of subdivision (e), which shall go into effect January 1, 2009.
SEC. 2.Section 14132.97 of the Welfare and Institutions Code is amended to read:14132.97.(a)(1)For purposes of this section, waiver personal care services means personal care services authorized by the department for persons who are eligible for either nursing or model nursing facility waiver services.
(2)Waiver personal care services shall satisfy all of the following criteria:
(A)The services shall be defined in the nursing and model nursing facility waivers.
(B)The services shall differ in scope from services that may be authorized under Section 14132.95 or 14132.952.
(C)The services shall not replace any hours of services authorized or that may be authorized under Section 14132.95 or 14132.952.
(3)The entity entities described in Section 12301.6, in accordance with Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code, shall be required to act as the employer to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment of individuals providing waiver personal care services.
(b)An individual may receive waiver personal care services if all of the following conditions are met:
(1)The individual has been approved by the department to receive services in accordance with a waiver approved under Section 1915(c) of the federal Social Security Act (42 U.S.C. Sec. 1396n(c)) for persons who would otherwise require care in a nursing facility.
(2)The individual has doctors orders that specify that he or she requires waiver personal care services in order to remain in his or her own home.
(3)The individual chooses, either personally or through a substitute decisionmaker who is recognized under state law for purposes of giving consent for medical treatment, to receive waiver personal care services, as well as medically necessary skilled nursing services, in order to remain in his or her own home.
(4)The waiver personal care services and all other waiver services for the individual do not result in costs that exceed the fiscal limit established under the waiver.
(c)The department shall notify the administrator of the in-home supportive services In-Home Supportive Services program in the county of residence of any individual who meets all requirements of subdivision (b) and has been authorized by the department to receive waiver personal care services. The county of residence shall then do the following:
(1)Inform the department of the services that the individual is authorized to receive under Section 14132.95 or 14132.952 at the time he or she becomes eligible for waiver personal care services.
(2)Determine the individuals eligibility for services under Section 14132.95 or 14132.952 if he or she is not currently authorized to receive those services and if he or she has not been previously determined eligible for those services.
(3)Implement the departments authorization for waiver personal care services for the individual at the quantity and scope authorized by the department.
(d)(1)Waiver personal care services approved by the department for individuals who meet the requirements of subdivision (b) may be provided in either of the following ways, or a combination of both:
(A)By a licensed and certified home health agency participating in the Medi-Cal program.
(B)By one or more providers of personal care services under Article 7 (commencing with Section 12300) of Chapter 3 and subdivision (d) of Section 14132.95, when the individual elects, in writing, to utilize these service providers.
(2)The department shall approve waiver personal care services for individuals who meet the requirements of subdivision (b) only when the department finds that the individuals receipt of waiver personal care services is necessary in order to enable the individual to be maintained safely in his or her own home and community.
(3)When waiver personal care services are provided by a licensed and certified home health agency, the home health agency shall receive payment in the manner by which it would receive payment for any other service approved by the department.
(4)When waiver personal care services are provided by one or more providers of personal care services under Article 7 (commencing with Section 12300) of Chapter 3 and subdivision (d) of Section 14132.95, the providers shall receive payment and benefits on a schedule and in a manner by which providers of personal care services receive payment. The State Department of Social Services shall commence making payments for waiver personal care services when its payment system has been modified to accommodate those payments. No county shall be A county is not obligated to administer waiver personal care services until the State Department of Social Services payment system has been modified to accommodate those payments. However, any county or public authority or nonprofit consortium that administers the in-home supportive services program In-Home Supportive Services and personal care services program programs may pay providers for the delivery of waiver personal care services if it chooses to do so. In such a that case, the county, public authority, or nonprofit consortium shall be reimbursed by the department for the waiver personal care services authorized by the department and provided to an individual upon submittal of documentation as required by the waiver, and in accordance with the requirements of the department.
(e)Waiver personal care services shall not count as alternative resources in a countys determination of the amount of services an individual may receive under Section 14132.95 or 14132.952.
(f)Any administrative costs to the State Department of Social Services, a county, or a public authority or nonprofit consortium associated with implementing this section shall be considered administrative costs under the waiver and shall be reimbursed by the department.
(g)Two hundred fifty thousand dollars ($250,000) is appropriated from the General Fund to the State Department of Social Services for the 199899 fiscal year for the purpose of making changes to the case management, information, and payrolling system that are necessary for the implementation of this section.
(h)This section shall not be implemented until the department has obtained federal approval of any necessary amendments to the existing nursing facility and model nursing facility waivers and the state plan under Title 19 of the federal Social Security Act (42 U.S.C. Sec. 1396 et seq.). Any amendments to the existing nursing facility and model nursing facility waivers and the state plan which are deemed to be necessary by the director shall be submitted to the federal Health Care Financing Administration by April 1, 1999.
(i)The department shall implement this section only to the extent that its implementation results in fiscal neutrality, as required under the terms of the waivers.
(a)Notwithstanding Sections 12302 and 12302.1, a county board of supervisors may, at its option, elect to do either of the following:
(1)Contract with a nonprofit consortium to provide for the delivery of in-home supportive services. services and waiver personal care services.
(2)Establish, by ordinance, a public authority to provide for the delivery of in-home supportive services. services and waiver personal care services.
(b)(1)To the extent that a county elects to establish a public authority pursuant to paragraph (2) of subdivision (a), the enabling ordinance shall specify the membership of the governing body of the public authority, the qualifications for individual members, the manner of appointment, selection, or removal of members, how long they shall serve, and other matters as the board of supervisors deems necessary for the operation of the public authority.
(2)A public authority established pursuant to paragraph (2) of subdivision (a) shall be both of the following:
(A)An entity separate from the county, and shall be required to file the statement required by Section 53051 of the Government Code.
(B)A corporate public body, exercising public and essential governmental functions and that has all powers necessary or convenient to carry out the delivery of in-home supportive services, services and waiver personal care services, including the power to contract for services pursuant to Sections 12302 and 12302.1 and that makes or provides for direct payment to a provider chosen by the recipient for the purchase of services pursuant to Sections 12302 and 12302.2. Employees of the public authority shall not be employees of the county for any purpose.
(3)(A)As an alternative, the enabling ordinance may designate the board of supervisors as the governing body of the public authority.
(B)Any enabling ordinance that designates the board of supervisors as the governing body of the public authority shall also specify that no fewer than 50 percent of the membership of the advisory committee shall be individuals who are current or past users of personal assistance services paid for through public or private funds or recipients of services under this article.
(C)If the enabling ordinance designates the board of supervisors as the governing body of the public authority, it shall also require the appointment of an advisory committee of not more than 11 individuals who shall be designated in accordance with subparagraph (B).
(D)Prior to making designations of committee members pursuant to subparagraph (C), or governing body members in accordance with paragraph (4), the board of supervisors shall solicit recommendations of qualified members of either the governing body of the public authority or of any advisory committee through a fair and open process that includes the provision of reasonable written notice to, and a reasonable response time by, members of the general public and interested persons and organizations.
(4)If the enabling ordinance does not designate the board of supervisors as the governing body of the public authority, the enabling ordinance shall require the membership of the governing body to meet the requirements of subparagraph (B) of paragraph (3).
(c)(1)Any public authority created pursuant to this section shall be deemed to be the employer of in-home supportive services personnel referred to recipients under paragraph (3) of subdivision (e), and the employer of providers of waiver personal care services provided pursuant to Section 14132.97, within the meaning of Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code. Recipients shall retain the right to hire, fire, and supervise the work of any in-home supportive services personnel or waiver personal care services personnel providing services to them.
(2)(A)Any nonprofit consortium contracting with a county pursuant to this section shall be deemed to be the employer of in-home supportive services personnel and waiver personal care services personnel referred to recipients pursuant to paragraph (3) of subdivision (e) for the purposes of collective bargaining over wages, hours, and other terms and conditions of employment.
(B)Recipients shall retain the right to hire, fire, and supervise the work of any in-home supportive services personnel or waiver personal care services personnel providing services for them.
(d)A public authority established pursuant to this section or a nonprofit consortium contracting with a county pursuant to this section, when providing for the delivery of services under this article by contract in accordance with Sections 12302 and 12302.1, by direct payment to a provider chosen by a recipient in accordance with Sections 12302 and 12302.2, or by way of a provider of waiver personal care services provided pursuant to Section 14132.97, shall comply with and be subject to, all statutory and regulatory provisions applicable to the respective delivery mode.
(e)Any nonprofit consortium contracting with a county pursuant to this section or any public authority established pursuant to this section shall provide for all of the following functions under this article, but shall not be limited to those functions:
(1)The provision of assistance to recipients in finding in-home supportive services personnel and waiver personal care services authorized pursuant to Section 14132.97 through the establishment of a registry.
(2)(A)(i)The investigation of the qualifications and background of potential personnel. Upon the effective date of the amendments to this section made during the 200910 Fourth Extraordinary Session of the Legislature, the investigation with respect to any provider in the registry or prospective registry applicant shall include criminal background checks requested by the nonprofit consortium or public authority and conducted by the Department of Justice pursuant to Section 15660, for those public authorities or nonprofit consortia using the agencies on the effective date of the amendments to this section made during the 200910 Fourth Extraordinary Session of the Legislature. Criminal background checks shall be performed no later than July 1, 2010, for any provider who is already on the registry on the effective date of amendments to this section made during the 200910 Fourth Extraordinary Session of the Legislature, for whom a criminal background check pursuant to this section has not previously been provided, as a condition of the providers continued enrollment in the IHSS program and the program authorizing waiver personal care services pursuant to Section 14132.97. Criminal background checks shall be conducted at the providers expense.
(ii)Upon notice from the Department of Justice notifying the public authority or nonprofit consortium that the prospective registry applicant has been convicted of a criminal offense specified in Section 12305.81, the public authority or nonprofit consortium shall deny the request to be placed on the registry for providing supportive services to any recipient of In-Home Supportive Services and in-home supportive services or waiver personal care services authorized pursuant to Section 14132.97.
(iii)Commencing 90 days after the effective date of the act that adds Section 12305.87, and upon notice from the Department of Justice that an applicant who is subject to the provisions of that section has been convicted of, or incarcerated following conviction for, an offense described in subdivision (b) of that section, the public authority or nonprofit consortium shall deny the applicants request to become a provider of supportive services to any recipient of in-home supportive services, services or waiver personal care services, subject to the individual waiver and exception processes described in that section. An applicant who is denied on the basis of Section 12305.87 shall be informed by the public authority or nonprofit consortium of the individual waiver and exception processes described in that section.
(B)(i)Notwithstanding any other law, the public authority or nonprofit consortium shall provide an individual with a copy of his or her state-level criminal offender record information search response as provided to the entity by the Department of Justice if the individual has been denied placement on the registry for providing supportive services to any recipient of the In-Home Supportive Services program or waiver personal care services based on this information. The copy of the state-level criminal offender record information search response shall be included with the individuals notice of denial. Along with the notice of denial, the public authority or public consortium shall also provide information in plain language on how an individual may contest the accuracy and completeness of, and refute any erroneous or inaccurate information in, his or her state-level criminal offender record information search response as provided by the Department of Justice as authorized by Section 11126 of the Penal Code. The state-level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice.
(ii)The department shall develop a written appeal process for the current and prospective providers who are determined ineligible to receive payment for the provision of services in the In-Home Supportive Services program. program or waiver personal care services. Notwithstanding any other law, the public authority or nonprofit consortium shall provide the department with a copy of the state-level criminal offender record information search response as provided to the entity by the Department of Justice for any individual who has requested an appeal of a denial of placement on the registry for providing supportive services to any recipient of the In-Home Supportive Services program in-home supportive services or waiver personal care services based on clause (ii) or (iii) of subparagraph (A). The state-level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice and shall be provided to the address specified by the department in its written request.
(C)This paragraph shall not be construed to prohibit the Department of Justice from assessing a fee pursuant to Section 11105 or 11123 of the Penal Code to cover the cost of furnishing summary criminal history information.
(D)As used in this section, nonprofit consortium means a nonprofit public benefit corporation that has all powers necessary to carry out the delivery of in-home supportive services or waiver personal care services under the delegated authority of a government entity.
(E)A nonprofit consortium or a public authority authorized to secure a criminal background check clearance pursuant to this section shall accept a clearance for an applicant described in clause (i) of subparagraph (A) who has been deemed eligible by another nonprofit consortium, public authority, or county with criminal background check authority pursuant to either Section 12305.86 or this section, to receive payment for providing services pursuant to this article. Existence of a clearance shall be determined by verification through the case management, information, and payrolling system, that another county, nonprofit consortium, or public authority with criminal background check authority pursuant to Section 12305.86 or this section has deemed the current or prospective provider to be eligible to receive payment for providing services pursuant to this article.
(3)Establishment of a referral system under which in-home supportive services personnel or waiver personal care services personnel shall be referred to recipients.
(4)Providing for training for providers and recipients.
(5)(A)Performing any other functions related to the delivery of in-home supportive services. services or waiver personal care services.
(B)(i)Upon request of a recipient of in-home supportive services pursuant to this chapter, or a recipient of personal care services under the Medi-Cal program pursuant to Section 14132.95, a public authority or nonprofit consortium may provide a criminal background check on a nonregistry applicant or provider from the Department of Justice, in accordance with clause (i) of subparagraph (A) of paragraph (2) of subdivision (e). If the person who is the subject of the criminal background check is not hired or is terminated because of the information contained in the criminal background report, the provisions of subparagraph (B) of paragraph (2) of subdivision (e) shall apply.
(ii)A recipient of in-home supportive services pursuant to this chapter or a recipient of personal care services under the Medi-Cal program may elect to employ an individual as their service provider notwithstanding the individuals record of previous criminal convictions, unless those convictions include any of the offenses specified in Section 12305.81.
(6)Ensuring that the requirements of the personal care option pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code are met.
(f)(1)Any nonprofit consortium contracting with a county pursuant to this section or any public authority created pursuant to this section shall be deemed not to be the employer of in-home supportive services personnel or waiver personal care services personnel referred to recipients under this section for purposes of liability due to the negligence or intentional torts of the in-home supportive services personnel or waiver personal care services personnel.
(2)In no case shall a nonprofit consortium contracting with a county pursuant to this section or any public authority created pursuant to this section be held liable for action or omission of any in-home supportive services personnel or waiver personal care services personnel whom the nonprofit consortium or public authority did not list on its registry or otherwise refer to a recipient.
(3)Counties and the state shall be immune from any liability resulting from their implementation of this section in the administration of the In-Home Supportive Services program or in the administration of waiver personal care services authorized under Section 14132.97. Any obligation of the public authority or consortium pursuant to this section, whether statutory, contractual, or otherwise, shall be the obligation solely of the public authority or nonprofit consortium, and shall not be the obligation of the county or state.
(g)Any nonprofit consortium contracting with a county pursuant to this section shall ensure that it has a governing body that complies with the requirements of subparagraph (B) of paragraph (3) of subdivision (b) or an advisory committee that complies with subparagraphs (B) and (C) of paragraph (3) of subdivision (b).
(h)Recipients of services under this section may elect to receive services from in-home supportive services personnel or waiver personal care services personnel who are not referred to them by the public authority or nonprofit consortium. Those personnel shall be referred to the public authority or nonprofit consortium for the purposes of wages, benefits, and other terms and conditions of employment.
(i)(1)Nothing in this section shall be construed to affect the states responsibility with respect to the state payroll system, unemployment insurance, or workers compensation and other provisions of Section 12302.2 for providers of in-home supportive services or for individuals who are employed by a recipient of waiver personal care services authorized under Section 14132.97.
(2)The Controller shall make any deductions from the wages of in-home supportive services personnel or waiver personal care services personnel, who are employees of a public authority pursuant to paragraph (1) of subdivision (c), that are agreed to by that public authority in collective bargaining with the designated representative of the in-home supportive services personnel or waiver personal care services personnel pursuant to Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code and transfer the deducted funds as directed in that agreement.
(3)Any county that elects to provide in-home supportive services or waiver personal care services authorized under Section 14132.97 pursuant to this section shall be responsible for any increased costs to the in-home supportive services case management, information, and payrolling system attributable to that election. The department shall collaborate with any county that elects to provide in-home supportive services or waiver personal care services authorized under Section 14132.97 pursuant to this section prior to implementing the amount of financial obligation for which the county shall be responsible.
(j)To the extent permitted by federal law, personal care option funds, obtained pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code, along with matching funds using the state and county sharing ratio established in subdivision (c) of Section 12306, or any other funds that are obtained pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code, may be used to establish and operate an entity authorized by this section.
(k)Notwithstanding any other law, the county, in exercising its option to establish a public authority, shall not be subject to competitive bidding requirements. However, contracts entered into by either the county, a public authority, or a nonprofit consortium pursuant to this section shall be subject to competitive bidding as otherwise required by law.
(l)(1)The department may adopt regulations implementing this section as emergency regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. For the purposes of the Administrative Procedure Act, the adoption of the regulations shall be deemed an emergency and necessary for the immediate preservation of the public peace, health and safety, or general welfare. Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, these emergency regulations shall not be subject to the review and approval of the Office of Administrative Law.
(2)Notwithstanding subdivision (h) of Section 11346.1 and Section 11349.6 of the Government Code, the department shall transmit these regulations directly to the Secretary of State for filing. The regulations shall become effective immediately upon filing by the Secretary of State.
(3)Except as otherwise provided for by Section 10554, the Office of Administrative Law shall provide for the printing and publication of these regulations in the California Code of Regulations. Emergency regulations adopted pursuant to this subdivision shall remain in effect for no more than 180 days.
(m)(1)In the event that a county elects to form a nonprofit consortium or public authority pursuant to subdivision (a) before the State Department of Health Care Services has obtained all necessary federal approvals pursuant to paragraph (3) of subdivision (j) of Section 14132.95, all of the following shall apply:
(A)Subdivision (d) shall apply only to those matters that do not require federal approval.
(B)The second sentence of subdivision (h) shall not be operative.
(C)The nonprofit consortium or public authority shall not provide services other than those specified in paragraphs (1), (2), (3), (4), and (5) of subdivision (e).
(2)Paragraph (1) shall become inoperative when the State Department of Health Care Services has obtained all necessary federal approvals pursuant to paragraph (3) of subdivision (j) of Section 14132.95.
(n)(1)One year after the effective date of the first approval by the department granted to the first public authority, the Bureau of State Audits shall commission a study to review the performance of that public authority.
(2)The study shall be submitted to the Legislature and the Governor not later than two years after the effective date of the approval specified in subdivision (a). The study shall give special attention to the health and welfare of the recipients under the public authority, including the degree to which all required services have been delivered, out-of-home placement rates, prompt response to recipient complaints, and any other issue the director deems relevant.
(3)The report shall make recommendations to the Legislature and the Governor for any changes to this section that will further ensure the well-being of recipients and the most efficient delivery of required services.
(o)Commencing July 1, 1997, the department shall provide annual reports to the appropriate fiscal and policy committees of the Legislature on the efficacy of the implementation of this section, and shall include an assessment of the quality of care provided pursuant to this section.
(p)(1)Notwithstanding any other law, and except as provided in paragraph (2), the department shall, no later than January 1, 2009, implement subparagraphs (A) and (B) through an all-county letter from the director:
(A)Subparagraphs (A) and (B) of paragraph (2) of subdivision (e).
(B)Subparagraph (B) of paragraph (5) of subdivision (e).
(2)The department shall, no later than July 1, 2009, adopt regulations to implement subparagraphs (A) and (B) of paragraph (1).
(q)The amendments made to paragraphs (2) and (5) of subdivision (e) made by the act that added this subdivision during the 200708 Regular Session of the Legislature shall be implemented only to the extent that an appropriation is made in the annual Budget Act or other statute, except for the amendments that added subparagraph (D) of paragraph (2) of subdivision (e), which shall go into effect January 1, 2009.
SEC. 3.SEC. 2.Section 14132.97 of the Welfare and Institutions Code is amended to read:14132.97.(a)(1)For purposes of this section, waiver personal care services means personal care services authorized by the department for persons who are eligible for either nursing or model nursing facility waiver services.
(2)Waiver personal care services shall satisfy all of the following criteria:
(A)The services shall be defined in the nursing and model nursing facility waivers.
(B)The services shall differ in scope from services that may be authorized under Section 14132.95 or 14132.952.
(C)The services shall not replace any hours of services authorized or that may be authorized under Section 14132.95 or 14132.952.
(3)The entity described in Section 12300.5, in accordance with Title 23 (commencing with Section 110000) of the Government Code, and the entity entities described in Section 12301.6, in accordance with Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code, shall be required to act as the employer to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment of individuals providing waiver personal care services.
(b)An individual may receive waiver personal care services if all of the following conditions are met:
(1)The individual has been approved by the department to receive services in accordance with a waiver approved under Section 1915(c) of the federal Social Security Act (42 U.S.C. Sec. 1396n(c)) for persons who would otherwise require care in a nursing facility.
(2)The individual has doctors orders that specify that he or she requires waiver personal care services in order to remain in his or her own home.
(3)The individual chooses, either personally or through a substitute decisionmaker who is recognized under state law for purposes of giving consent for medical treatment, to receive waiver personal care services, as well as medically necessary skilled nursing services, in order to remain in his or her own home.
(4)The waiver personal care services and all other waiver services for the individual do not result in costs that exceed the fiscal limit established under the waiver.
(c)The department shall notify the administrator of the in-home supportive services program in the county of residence of any individual who meets all requirements of subdivision (b) and has been authorized by the department to receive waiver personal care services. The county of residence shall then do the following:
(1)Inform the department of the services that the individual is authorized to receive under Section 14132.95 or 14132.952 at the time he or she becomes eligible for waiver personal care services.
(2)Determine the individuals eligibility for services under Section 14132.95 or 14132.952 if he or she is not currently authorized to receive those services and if he or she has not been previously determined eligible for those services.
(3)Implement the departments authorization for waiver personal care services for the individual at the quantity and scope authorized by the department.
(d)(1)Waiver personal care services approved by the department for individuals who meet the requirements of subdivision (b) may be provided in either of the following ways, or a combination of both:
(A)By a licensed and certified home health agency participating in the Medi-Cal program.
(B)By one or more providers of personal care services under Article 7 (commencing with Section 12300) of Chapter 3 and subdivision (d) of Section 14132.95, when the individual elects, in writing, to utilize these service providers.
(2)The department shall approve waiver personal care services for individuals who meet the requirements of subdivision (b) only when the department finds that the individuals receipt of waiver personal care services is necessary in order to enable the individual to be maintained safely in his or her own home and community.
(3)When waiver personal care services are provided by a licensed and certified home health agency, the home health agency shall receive payment in the manner by which it would receive payment for any other service approved by the department.
(4)When waiver personal care services are provided by one or more providers of personal care services under Article 7 (commencing with Section 12300) of Chapter 3 and subdivision (d) of Section 14132.95, the providers shall receive payment and benefits on a schedule and in a manner by which providers of personal care services receive payment. The State Department of Social Services shall commence making payments for waiver personal care services when its payment system has been modified to accommodate those payments. No county shall be obligated to administer waiver personal care services until the State Department of Social Services payment system has been modified to accommodate those payments. However, any county or public authority or nonprofit consortium that administers the in-home supportive services program and personal care services program may pay providers for the delivery of waiver personal care services if it chooses to do so. In such a case, the county, public authority, or nonprofit consortium shall be reimbursed by the department for the waiver personal care services authorized by the department and provided to an individual upon submittal of documentation as required by the waiver, and in accordance with the requirements of the department.
(e)Waiver personal care services shall not count as alternative resources in a countys determination of the amount of services an individual may receive under Section 14132.95 or 14132.952.
(f)Any administrative costs to the State Department of Social Services, a county, or a public authority or nonprofit consortium associated with implementing this section shall be considered administrative costs under the waiver and shall be reimbursed by the department.
(g)Two hundred fifty thousand dollars ($250,000) is appropriated from the General Fund to the State Department of Social Services for the 199899 fiscal year for the purpose of making changes to the case management, information, and payrolling system that are necessary for the implementation of this section.
(h)This section shall not be implemented until the department has obtained federal approval of any necessary amendments to the existing nursing facility and model nursing facility waivers and the state plan under Title 19 of the federal Social Security Act (42 U.S.C. Sec. 1396 et seq.). Any amendments to the existing nursing facility and model nursing facility waivers and the state plan which are deemed to be necessary by the director shall be submitted to the federal Health Care Financing Administration by April 1, 1999.
(i)The department shall implement this section only to the extent that its implementation results in fiscal neutrality, as required under the terms of the waivers.
(a)The California In-Home Supportive Services Authority, hereafter referred to as the Statewide Authority, established pursuant to Section 6531.5 of the Government Code, shall be the entity authorized to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment in accordance with Title 23 (commencing with Section 110000) of the Government Code, with representatives of recognized employee organizations for any individual provider who is employed by a recipient of in-home supportive services described in Section 12300 after the county implementation date as described in subdivision (a) of Section 12300.7. 12300.7 or for an individual who is employed by a recipient of waiver personal care services authorized under Section 14132.97.
(b)The Statewide Authority and the Department of Human Resources and other state departments may enter into a memorandum of understanding or other agreement to have the Department of Human Resources meet and confer on behalf of the Statewide Authority for the purposes described in subdivision (a) or to provide the Statewide Authority with other services, including, but not limited to, administrative and legal services.
(c)The state, the Statewide Authority, or any county that has met the conditions in Section 12300.7 shall not be deemed to be the employer of any individual provider who is employed by a recipient of in-home supportive services as described in Section 12300 or of an individual who is employed by a recipient of waiver personal care services authorized under Section 14132.97 for purposes of liability due to the negligence or intentional torts of the individual provider.
SEC. 2.Section 12301.6 of the Welfare and Institutions Code is amended to read:12301.6.(a)Notwithstanding Sections 12302 and 12302.1, a county board of supervisors may, at its option, elect to do either of the following:
(1)Contract with a nonprofit consortium to provide for the delivery of in-home supportive services.
(2)Establish, by ordinance, a public authority to provide for the delivery of in-home supportive services.
(b)(1)To the extent that a county elects to establish a public authority pursuant to paragraph (2) of subdivision (a), the enabling ordinance shall specify the membership of the governing body of the public authority, the qualifications for individual members, the manner of appointment, selection, or removal of members, how long they shall serve, and other matters as the board of supervisors deems necessary for the operation of the public authority.
(2)A public authority established pursuant to paragraph (2) of subdivision (a) shall be both of the following:
(A)An entity separate from the county, and shall be required to file the statement required by Section 53051 of the Government Code.
(B)A corporate public body, exercising public and essential governmental functions and that has all powers necessary or convenient to carry out the delivery of in-home supportive services, including the power to contract for services pursuant to Sections 12302 and 12302.1 and that makes or provides for direct payment to a provider chosen by the recipient for the purchase of services pursuant to Sections 12302 and 12302.2. Employees of the public authority shall not be employees of the county for any purpose.
(3)(A)As an alternative, the enabling ordinance may designate the board of supervisors as the governing body of the public authority.
(B)Any enabling ordinance that designates the board of supervisors as the governing body of the public authority shall also specify that no fewer than 50 percent of the membership of the advisory committee shall be individuals who are current or past users of personal assistance services paid for through public or private funds or recipients of services under this article.
(C)If the enabling ordinance designates the board of supervisors as the governing body of the public authority, it shall also require the appointment of an advisory committee of not more than 11 individuals who shall be designated in accordance with subparagraph (B).
(D)Prior to making designations of committee members pursuant to subparagraph (C), or governing body members in accordance with paragraph (4), the board of supervisors shall solicit recommendations of qualified members of either the governing body of the public authority or of any advisory committee through a fair and open process that includes the provision of reasonable written notice to, and a reasonable response time by, members of the general public and interested persons and organizations.
(4)If the enabling ordinance does not designate the board of supervisors as the governing body of the public authority, the enabling ordinance shall require the membership of the governing body to meet the requirements of subparagraph (B) of paragraph (3).
(c)(1)Any public authority created pursuant to this section shall be deemed to be the employer of in-home supportive services personnel referred to recipients under paragraph (3) of subdivision (e) (e), and the employer of providers of waiver personal care services provided pursuant to Section 14132.97, within the meaning of Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code. Recipients shall retain the right to hire, fire, and supervise the work of any in-home supportive services personnel providing services to them.
(2)(A)Any nonprofit consortium contracting with a county pursuant to this section shall be deemed to be the employer of in-home supportive services personnel referred to recipients pursuant to paragraph (3) of subdivision (e) for the purposes of collective bargaining over wages, hours, and other terms and conditions of employment.
(B)Recipients shall retain the right to hire, fire, and supervise the work of any in-home supportive services personnel providing services for them.
(d)A public authority established pursuant to this section or a nonprofit consortium contracting with a county pursuant to this section, when providing for the delivery of services under this article by contract in accordance with Sections 12302 and 12302.1 or 12302.1, by direct payment to a provider chosen by a recipient in accordance with Sections 12302 and 12302.2, or by way of a provider of waiver personal care services provided pursuant to Section 14132.97, shall comply with and be subject to, all statutory and regulatory provisions applicable to the respective delivery mode.
(e)Any nonprofit consortium contracting with a county pursuant to this section or any public authority established pursuant to this section shall provide for all of the following functions under this article, but shall not be limited to those functions:
(1)The provision of assistance to recipients in finding in-home supportive services personnel and waiver personal care services authorized pursuant to Section 14132.97 through the establishment of a registry.
(2)(A)(i)The investigation of the qualifications and background of potential personnel. Upon the effective date of the amendments to this section made during the 200910 Fourth Extraordinary Session of the Legislature, the investigation with respect to any provider in the registry or prospective registry applicant shall include criminal background checks requested by the nonprofit consortium or public authority and conducted by the Department of Justice pursuant to Section 15660, for those public authorities or nonprofit consortia using the agencies on the effective date of the amendments to this section made during the 200910 Fourth Extraordinary Session of the Legislature. Criminal background checks shall be performed no later than July 1, 2010, for any provider who is already on the registry on the effective date of amendments to this section made during the 200910 Fourth Extraordinary Session of the Legislature, for whom a criminal background check pursuant to this section has not previously been provided, as a condition of the providers continued enrollment in the IHSS program. program and the program authorizing waiver personal care services pursuant to Section 14132.97. Criminal background checks shall be conducted at the providers expense.
(ii)Upon notice from the Department of Justice notifying the public authority or nonprofit consortium that the prospective registry applicant has been convicted of a criminal offense specified in Section 12305.81, the public authority or nonprofit consortium shall deny the request to be placed on the registry for providing supportive services to any recipient of the In-Home Supportive Services program. and waiver personal care services authorized pursuant to Section 14132.97.
(iii)Commencing 90 days after the effective date of the act that adds Section 12305.87, and upon notice from the Department of Justice that an applicant who is subject to the provisions of that section has been convicted of, or incarcerated following conviction for, an offense described in subdivision (b) of that section, the public authority or nonprofit consortium shall deny the applicants request to become a provider of supportive services to any recipient of in-home supportive services, subject to the individual waiver and exception processes described in that section. An applicant who is denied on the basis of Section 12305.87 shall be informed by the public authority or nonprofit consortium of the individual waiver and exception processes described in that section.
(B)(i)Notwithstanding any other law, the public authority or nonprofit consortium shall provide an individual with a copy of his or her state-level criminal offender record information search response as provided to the entity by the Department of Justice if the individual has been denied placement on the registry for providing supportive services to any recipient of the In-Home Supportive Services program based on this information. The copy of the state-level criminal offender record information search response shall be included with the individuals notice of denial. Along with the notice of denial, the public authority or public consortium shall also provide information in plain language on how an individual may contest the accuracy and completeness of, and refute any erroneous or inaccurate information in, his or her state-level criminal offender record information search response as provided by the Department of Justice as authorized by Section 11126 of the Penal Code. The state-level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice.
(ii)The department shall develop a written appeal process for the current and prospective providers who are determined ineligible to receive payment for the provision of services in the In-Home Supportive Services program. Notwithstanding any other law, the public authority or nonprofit consortium shall provide the department with a copy of the state-level criminal offender record information search response as provided to the entity by the Department of Justice for any individual who has requested an appeal of a denial of placement on the registry for providing supportive services to any recipient of the In-Home Supportive Services program based on clause (ii) or (iii) of subparagraph (A). The state-level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice and shall be provided to the address specified by the department in its written request.
(C)This paragraph shall not be construed to prohibit the Department of Justice from assessing a fee pursuant to Section 11105 or 11123 of the Penal Code to cover the cost of furnishing summary criminal history information.
(D)As used in this section, nonprofit consortium means a nonprofit public benefit corporation that has all powers necessary to carry out the delivery of in-home supportive services under the delegated authority of a government entity.
(E)A nonprofit consortium or a public authority authorized to secure a criminal background check clearance pursuant to this section shall accept a clearance for an applicant described in clause (i) of subparagraph (A) who has been deemed eligible by another nonprofit consortium, public authority, or county with criminal background check authority pursuant to either Section 12305.86 or this section, to receive payment for providing services pursuant to this article. Existence of a clearance shall be determined by verification through the case management, information, and payrolling system, that another county, nonprofit consortium, or public authority with criminal background check authority pursuant to Section 12305.86 or this section has deemed the current or prospective provider to be eligible to receive payment for providing services pursuant to this article.
(3)Establishment of a referral system under which in-home supportive services personnel shall be referred to recipients.
(4)Providing for training for providers and recipients.
(5)(A)Performing any other functions related to the delivery of in-home supportive services.
(B)(i)Upon request of a recipient of in-home supportive services pursuant to this chapter, or a recipient of personal care services under the Medi-Cal program pursuant to Section 14132.95, a public authority or nonprofit consortium may provide a criminal background check on a nonregistry applicant or provider from the Department of Justice, in accordance with clause (i) of subparagraph (A) of paragraph (2) of subdivision (e). If the person who is the subject of the criminal background check is not hired or is terminated because of the information contained in the criminal background report, the provisions of subparagraph (B) of paragraph (2) of subdivision (e) shall apply.
(ii)A recipient of in-home supportive services pursuant to this chapter or a recipient of personal care services under the Medi-Cal program may elect to employ an individual as their service provider notwithstanding the individuals record of previous criminal convictions, unless those convictions include any of the offenses specified in Section 12305.81.
(6)Ensuring that the requirements of the personal care option pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code are met.
(f)(1)Any nonprofit consortium contracting with a county pursuant to this section or any public authority created pursuant to this section shall be deemed not to be the employer of in-home supportive services personnel referred to recipients under this section for purposes of liability due to the negligence or intentional torts of the in-home supportive services personnel.
(2)In no case shall a nonprofit consortium contracting with a county pursuant to this section or any public authority created pursuant to this section be held liable for action or omission of any in-home supportive services personnel whom the nonprofit consortium or public authority did not list on its registry or otherwise refer to a recipient.
(3)Counties and the state shall be immune from any liability resulting from their implementation of this section in the administration of the In-Home Supportive Services program. program or in the administration of waiver personal care services authorized under Section 14132.97. Any obligation of the public authority or consortium pursuant to this section, whether statutory, contractual, or otherwise, shall be the obligation solely of the public authority or nonprofit consortium, and shall not be the obligation of the county or state.
(g)Any nonprofit consortium contracting with a county pursuant to this section shall ensure that it has a governing body that complies with the requirements of subparagraph (B) of paragraph (3) of subdivision (b) or an advisory committee that complies with subparagraphs (B) and (C) of paragraph (3) of subdivision (b).
(h)Recipients of services under this section may elect to receive services from in-home supportive services personnel who are not referred to them by the public authority or nonprofit consortium. Those personnel shall be referred to the public authority or nonprofit consortium for the purposes of wages, benefits, and other terms and conditions of employment.
(i)(1)Nothing in this section shall be construed to affect the states responsibility with respect to the state payroll system, unemployment insurance, or workers compensation and other provisions of Section 12302.2 for providers of in-home supportive services. services or for individuals who are employed by a recipient of waiver personal care services authorized under Section 14132.97.
(2)The Controller shall make any deductions from the wages of in-home supportive services personnel, who are employees of a public authority pursuant to paragraph (1) of subdivision (c), that are agreed to by that public authority in collective bargaining with the designated representative of the in-home supportive services personnel pursuant to Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code and transfer the deducted funds as directed in that agreement.
(3)Any county that elects to provide in-home supportive services or waiver personal care services authorized under Section 14132.97 pursuant to this section shall be responsible for any increased costs to the in-home supportive services case management, information, and payrolling system attributable to that election. The department shall collaborate with any county that elects to provide in-home supportive services or waiver personal care services authorized under Section 14132.97 pursuant to this section prior to implementing the amount of financial obligation for which the county shall be responsible.
(j)To the extent permitted by federal law, personal care option funds, obtained pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code, along with matching funds using the state and county sharing ratio established in subdivision (c) of Section 12306, or any other funds that are obtained pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code, may be used to establish and operate an entity authorized by this section.
(k)Notwithstanding any other law, the county, in exercising its option to establish a public authority, shall not be subject to competitive bidding requirements. However, contracts entered into by either the county, a public authority, or a nonprofit consortium pursuant to this section shall be subject to competitive bidding as otherwise required by law.
(l)(1)The department may adopt regulations implementing this section as emergency regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. For the purposes of the Administrative Procedure Act, the adoption of the regulations shall be deemed an emergency and necessary for the immediate preservation of the public peace, health and safety, or general welfare. Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, these emergency regulations shall not be subject to the review and approval of the Office of Administrative Law.
(2)Notwithstanding subdivision (h) of Section 11346.1 and Section 11349.6 of the Government Code, the department shall transmit these regulations directly to the Secretary of State for filing. The regulations shall become effective immediately upon filing by the Secretary of State.
(3)Except as otherwise provided for by Section 10554, the Office of Administrative Law shall provide for the printing and publication of these regulations in the California Code of Regulations. Emergency regulations adopted pursuant to this subdivision shall remain in effect for no more than 180 days.
(m)(1)In the event that a county elects to form a nonprofit consortium or public authority pursuant to subdivision (a) before the State Department of Health Care Services has obtained all necessary federal approvals pursuant to paragraph (3) of subdivision (j) of Section 14132.95, all of the following shall apply:
(A)Subdivision (d) shall apply only to those matters that do not require federal approval.
(B)The second sentence of subdivision (h) shall not be operative.
(C)The nonprofit consortium or public authority shall not provide services other than those specified in paragraphs (1), (2), (3), (4), and (5) of subdivision (e).
(2)Paragraph (1) shall become inoperative when the State Department of Health Care Services has obtained all necessary federal approvals pursuant to paragraph (3) of subdivision (j) of Section 14132.95.
(n)(1)One year after the effective date of the first approval by the department granted to the first public authority, the Bureau of State Audits shall commission a study to review the performance of that public authority.
(2)The study shall be submitted to the Legislature and the Governor not later than two years after the effective date of the approval specified in subdivision (a). The study shall give special attention to the health and welfare of the recipients under the public authority, including the degree to which all required services have been delivered, out-of-home placement rates, prompt response to recipient complaints, and any other issue the director deems relevant.
(3)The report shall make recommendations to the Legislature and the Governor for any changes to this section that will further ensure the well-being of recipients and the most efficient delivery of required services.
(o)Commencing July 1, 1997, the department shall provide annual reports to the appropriate fiscal and policy committees of the Legislature on the efficacy of the implementation of this section, and shall include an assessment of the quality of care provided pursuant to this section.
(p)(1)Notwithstanding any other law, and except as provided in paragraph (2), the department shall, no later than January 1, 2009, implement subparagraphs (A) and (B) through an all-county letter from the director:
(A)Subparagraphs (A) and (B) of paragraph (2) of subdivision (e).
(B)Subparagraph (B) of paragraph (5) of subdivision (e).
(2)The department shall, no later than July 1, 2009, adopt regulations to implement subparagraphs (A) and (B) of paragraph (1).
(q)The amendments made to paragraphs (2) and (5) of subdivision (e) made by the act that added this subdivision during the 200708 Regular Session of the Legislature shall be implemented only to the extent that an appropriation is made in the annual Budget Act or other statute, except for the amendments that added subparagraph (D) of paragraph (2) of subdivision (e), which shall go into effect January 1, 2009.
SEC. 3.Section 14132.97 of the Welfare and Institutions Code is amended to read:14132.97.(a)(1)For purposes of this section, waiver personal care services means personal care services authorized by the department for persons who are eligible for either nursing or model nursing facility waiver services.
(2)Waiver personal care services shall satisfy all of the following criteria:
(A)The services shall be defined in the nursing and model nursing facility waivers.
(B)The services shall differ in scope from services that may be authorized under Section 14132.95 or 14132.952.
(C)The services shall not replace any hours of services authorized or that may be authorized under Section 14132.95 or 14132.952.
(3)The entity described in Section 12300.5, in accordance with Title 23 (commencing with Section 110000) of the Government Code, and the entity described in Section 12301.6, in accordance with Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code, shall be required to act as the employer to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment of individuals providing waiver personal care services.
(b)An individual may receive waiver personal care services if all of the following conditions are met:
(1)The individual has been approved by the department to receive services in accordance with a waiver approved under Section 1915(c) of the federal Social Security Act (42 U.S.C. Sec. 1396n(c)) for persons who would otherwise require care in a nursing facility.
(2)The individual has doctors orders that specify that he or she requires waiver personal care services in order to remain in his or her own home.
(3)The individual chooses, either personally or through a substitute decisionmaker who is recognized under state law for purposes of giving consent for medical treatment, to receive waiver personal care services, as well as medically necessary skilled nursing services, in order to remain in his or her own home.
(4)The waiver personal care services and all other waiver services for the individual do not result in costs that exceed the fiscal limit established under the waiver.
(c)The department shall notify the administrator of the in-home supportive services program in the county of residence of any individual who meets all requirements of subdivision (b) and has been authorized by the department to receive waiver personal care services. The county of residence shall then do the following:
(1)Inform the department of the services that the individual is authorized to receive under Section 14132.95 or 14132.952 at the time he or she becomes eligible for waiver personal care services.
(2)Determine the individuals eligibility for services under Section 14132.95 or 14132.952 if he or she is not currently authorized to receive those services and if he or she has not been previously determined eligible for those services.
(3)Implement the departments authorization for waiver personal care services for the individual at the quantity and scope authorized by the department.
(d)(1)Waiver personal care services approved by the department for individuals who meet the requirements of subdivision (b) may be provided in either of the following ways, or a combination of both:
(A)By a licensed and certified home health agency participating in the Medi-Cal program.
(B)By one or more providers of personal care services under Article 7 (commencing with Section 12300) of Chapter 3 and subdivision (d) of Section 14132.95, when the individual elects, in writing, to utilize these service providers.
(2)The department shall approve waiver personal care services for individuals who meet the requirements of subdivision (b) only when the department finds that the individuals receipt of waiver personal care services is necessary in order to enable the individual to be maintained safely in his or her own home and community.
(3)When waiver personal care services are provided by a licensed and certified home health agency, the home health agency shall receive payment in the manner by which it would receive payment for any other service approved by the department.
(4)When waiver personal care services are provided by one or more providers of personal care services under Article 7 (commencing with Section 12300) of Chapter 3 and subdivision (d) of Section 14132.95, the providers shall receive payment on a schedule and in a manner by which providers of personal care services receive payment. The State Department of Social Services shall commence making payments for waiver personal care services when its payment system has been modified to accommodate those payments. No county shall be obligated to administer waiver personal care services until the State Department of Social Services payment system has been modified to accommodate those payments. However, any county or public authority or nonprofit consortium that administers the in-home supportive services program and personal care services program may pay providers for the delivery of waiver personal care services if it chooses to do so. In such a case, the county, public authority, or nonprofit consortium shall be reimbursed by the department for the waiver personal care services authorized by the department and provided to an individual upon submittal of documentation as required by the waiver, and in accordance with the requirements of the department.
(e)Waiver personal care services shall not count as alternative resources in a countys determination of the amount of services an individual may receive under Section 14132.95 or 14132.952.
(f)Any administrative costs to the State Department of Social Services, a county, or a public authority or nonprofit consortium associated with implementing this section shall be considered administrative costs under the waiver and shall be reimbursed by the department.
(g)Two hundred fifty thousand dollars ($250,000) is appropriated from the General Fund to the State Department of Social Services for the 199899 fiscal year for the purpose of making changes to the case management, information, and payrolling system that are necessary for the implementation of this section.
(h)This section shall not be implemented until the department has obtained federal approval of any necessary amendments to the existing nursing facility and model nursing facility waivers and the state plan under Title 19 of the federal Social Security Act (42 U.S.C. Sec. 1396 et seq.). Any amendments to the existing nursing facility and model nursing facility waivers and the state plan which are deemed to be necessary by the director shall be submitted to the federal Health Care Financing Administration by April 1, 1999.
(i)The department shall implement this section only to the extent that its implementation results in fiscal neutrality, as required under the terms of the waivers.
|
Date
|
Status
|
|---|---|
| Jan 12, 2018 | Stricken from file. |
| Jan 3, 2018 | Consideration of Governor's veto pending. |
| Oct 15, 2017 | Vetoed by Governor. |
| Sep 26, 2017 | Enrolled and presented to the Governor at 3 p.m. |
| Sep 15, 2017 | In Assembly. Concurrence in Senate amendments pending. |
| Sep 14, 2017 | Read third time. Passed. Ordered to the Assembly. |
| Sep 13, 2017 | From committee: That the measure be returned to Senate Floor for consideration. (Ayes 4. Noes 0.) (September 13) |
| Sep 11, 2017 | Read second time. Ordered to third reading. |
| Sep 8, 2017 | Read third time and amended. Ordered to second reading. |
| Sep 5, 2017 | Read second time. Ordered to third reading. |
| Sep 1, 2017 | From committee: Do pass. (Ayes 6. Noes 0.) (September 1). |
| Aug 21, 2017 | In committee: Referred to APPR. suspense file. |
| Jul 13, 2017 | Read second time and amended. Re-referred to Com. on APPR. |
| Jul 12, 2017 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. with recommendation: To Consent Calendar. (Ayes 7. Noes 0.) (July 11). |
| Jun 21, 2017 | In committee: Hearing postponed by committee. |
| Jun 8, 2017 | Referred to Com. on HUMAN S. |
| May 30, 2017 | In Senate. Read first time. To Com. on RLS. for assignment. |
| May 30, 2017 | Read third time. Passed. Ordered to the Senate. (Ayes 75. Noes 0. Page 1817.) |
| May 26, 2017 | From committee: Do pass. (Ayes 17. Noes 0.) (May 26). |
| Apr 26, 2017 | In committee: Set, first hearing. Referred to APPR. suspense file. |
| Apr 5, 2017 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 7. Noes 0.) (April 4). Re-referred to Com. on APPR. |
| Mar 30, 2017 | Re-referred to Com. on HUM. S. |
| Mar 29, 2017 | From committee chair, with author's amendments: Amend, and re-refer to Com. on HUM. S. Read second time and amended. |
| Mar 21, 2017 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Feb 27, 2017 | Referred to Com. on HUM. S. |
| Feb 14, 2017 | From printer. May be heard in committee March 16. |
| Feb 13, 2017 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 15, 2017 | AB 432 Thurmond Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Sep 14, 2017 | Assembly 3rd Reading AB432 Thurmond By Mendoza | Senate Floor |
Passed |
|
| Sep 13, 2017 | That the measure be returned to Senate Floor for consideration. Ordered to third reading. | Senate Standing Committee on Human Services |
Passed |
|
| Sep 1, 2017 | Do pass | Senate Standing Committee on Appropriations |
Passed |
|
| Aug 21, 2017 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Jul 11, 2017 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] with the recommendation: To Consent Calendar | Senate Standing Committee on Human Services |
Passed |
|
| May 30, 2017 | AB 432 THURMOND Assembly Third Reading | Assembly Floor |
Passed |
|
| May 26, 2017 | Do pass. | Assembly Standing Committee on Appropriations |
Passed |
|
| Apr 4, 2017 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Human Services |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| AFSCME Local 3930 | * Support | Sep 13, 2017 |
| American Federation of State, County and Municipal Employees | * Support | Sep 13, 2017 |
| California Association of Public Authorities | ** Support | Sep 13, 2017 |
| California Association Of Public Authorities For Ihss | ** Support | Sep 13, 2017 |
| Department Of Finance | ** Against | Sep 13, 2017 |
| Kappa | * Support | Sep 13, 2017 |
| Personal Assistance Services Council | ** Support | Mar 31, 2017 |
| Results In State General Fund Costs And Pressures, | ** Against | Sep 13, 2017 |
| SEIU | * Support | Sep 13, 2017 |
| SEIU California | * Support | Sep 13, 2017 |
| the in-home supportive services advisory committee, san bernardino | ** Support | Sep 13, 2017 |
| UDW Absteny Local 3930 | * Support | Sep 13, 2017 |
GOVERNOR'S VETO
GV Bill Id:AB 432
Author:(Thurmond)
As Enrolled Ver:September 19, 2017
2/3 vote
ASSEMBLY: | 75-0 | (May 30, 2017) | SENATE: | 39-0 | (September 14, 2017) |
ASSEMBLY: | 75-1 | (September 15, 2017) |
Original Committee Reference: HUM. S.
SUMMARY: Establishes county public authorities and nonprofit consortia as the employers of record for providers of waiver personal care services (WPCS) and adopts related changes in order to establish parity between WPCS and in-home supportive services (IHSS) providers for purposes of labor relations.
Specifically, this bill:
- Exempts information regarding individuals paid by the state to provide WPCS from public disclosure pursuant to the California Public Records Act, with the exception of certain contact information that must be made available upon request to an exclusive bargaining agent and to any labor organization seeking representation rights, as specified.
- Adds to current law regarding the delivery of in-home supportive services (IHSS) the following provisions regarding waiver personal care services (WPCS):
- Authorizes a county board of supervisors to, at its option, contract with a nonprofit consortium or establish, by ordinance, a public authority to provide for the delivery of WPCS;
- Requires a public authority to be a corporate public body exercising public and essential governmental functions and that has all the powers necessary or convenient to carry out the delivery of WPCS;
- Stipulates that any public authority established to provide for the delivery of IHSS and WPCS and any nonprofit consortium contracting with a county shall be deemed to be the employer of providers of WPCS, as specified, but maintains recipients' right to hire, fire, and supervise the work of any WPCS personnel providing services to them.
- Requires the wages and benefits for WPCS providers, to the extent permitted by federal law, to be equal to the rates in each county for the individual provider mode of services in the IHSS program, as specified;
- Requires – as of the earlier of July 1, 2019, or an appropriation in the annual state Budget Act for health benefit costs – provider eligibility for benefits that are calculated based on a threshold number of hours worked to be determined based on the total number of monthly hours worked to provide IHSS and WPCS services.
- Requires each nonprofit consortium or public authority to, as specified:
- Comply with and be subject to all statutory and regulatory provisions applicable to the delivery of services by way of a provider of WPCS;
- Provide assistance to recipients in finding WPCS through the establishment of a registry;
- Perform criminal background checks, at the provider's expense, as a condition of a provider's continued enrollment in the program authorizing WPCS, deny an applicant from being placed on the registry or providing services to any recipient of WPCS services if that applicant has been convicted of specified criminal offenses, provide an individual a copy of his or her state-level criminal offender record information search response in the event of a denial that is based on this information, develop a written appeal process for individuals determined to be ineligible to receive payment for the provision of WPCS, and supply certain information to the Department of Social Services (DSS) regarding any such appeal;
- Establish a referral system under which WPCS personnel shall be referred to recipients;
- Perform any other function related to the delivery of WPCS;
- Not be deemed the employer of WPCS personnel for purposes of liability due to the negligence or intentional torts of the WPCS personnel; and
- In no case be held liable for action or omission of any WPCS personnel whom the nonprofit consortium or public authority did not list on its registry or otherwise refer to a recipient;
- Requires counties and the state be immune from liability in the administration of WPCS, as specified;
- Maintains the right of recipients to elect to receive services from WPCS personnel who are not referred to them by the public authority or nonprofit consortium;
- Stipulates that nothing in the section being amended by this bill shall be construed to impact the state's responsibility with respect to the state payroll system, unemployment insurance, or worker's compensation, among other things as specified, for providers of WPCS; and
- Requires the State Controller to make and transfer any deductions agreed to in collective bargaining from the wages of WPCS personnel who are employees of a public authority, as specified.
- Requires any public authority or nonprofit consortium to act as the employer to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment for individuals providing WPCS, as specified.
- Clarifies that, in addition to payment as currently stipulated in law, WPCS providers must also receive benefits on a schedule and in a manner by which providers of personal care services receive payment, as specified.
- Makes technical changes.
The Senate amendments:
- Add language exempting information regarding individuals paid by the state to provide WPCS from public disclosure pursuant to the California Public Records Act, with the exception of certain contact information that must be made available upon request to an exclusive bargaining agent and to any labor organization seeking representation rights to be used solely for organizing, representation, and assistance activities, as specified.
- Add language that requires the wages and benefits for WPCS providers, to the extent permitted by federal law, to be equal to the rates in each county for the individual provider mode of services in the IHSS program, as specified.
- Add language that requires – as of the earlier of July 1, 2019, or an appropriation in the annual state Budget Act for health benefit costs – provider eligibility for benefits that are calculated based on a threshold number of hours worked to be determined based on the total number of monthly hours worked to provide IHSS and WPCS services.
- Make technical changes.
EXISTING LAW:
- Establishes the IHSS program to provide supportive services, including domestic, protective supervision, personal care, and paramedical services as specified, to individuals who are aged, blind, or living with disabilities, and who are unable to perform the services themselves or remain safely in their homes without receiving these services. (Welfare and Institutions Code (WIC) 12300 et seq.)
- States that counties may choose to contract with a nonprofit consortium or establish a public authority for the provision of IHSS services. Requires nonprofit consortia and public authorities to, among other things, establish a registry to assist recipients in locating IHSS providers, and to investigate the background and qualifications of potential providers, as specified. (WIC 12301.6)
- Maintains an IHSS recipient's right to hire, fire, and supervise the work of any IHSS provider, regardless of the employer responsibilities of a public authority or nonprofit consortium, as specified. (WIC 12301.6)
- Defines "waiver personal care services" to mean personal care services authorized by the Department of Health Care Services (DHCS) for persons who are eligible for either nursing or model nursing facility waiver services. (WIC 14132.97(a)(1))
- Establishes requirements, including eligibility criteria, for waiver personal care services. (WIC 14132.97)
- Authorizes in federal law the Medicaid Home and Community Based Services (HCBS) waiver program to offer alternatives to institutionalization of individuals, allowing for, among other things, the provision of personal care services. (42 United States Code (U.S.C.) 1396n, section 1915(c))
- Establishes the California Public Records Act for purposes of establishing requirements for the disclosure of state and local governmental records to the public. (Government Code (GOV) 6250 et seq.)
- Exempts information regarding individuals paid by the state to provide IHSS and certain personal care services from public disclosure pursuant to the California Public Records Act, with the exception of certain contact information that must be made available upon request to an exclusive bargaining agent and to any labor organization seeking representation rights, as specified. (GOV 6253.2)
FISCAL EFFECT: According to the Senate Appropriations Committee on August 21, 2017, this bill may result in significant costs of about $1,972,000 ($986,000 General Fund) in Fiscal Year 2017-18 and unknown, significant ongoing costs, likely around $1 million per year, to cover the costs of benefits for eligible WPCS providers.
COMMENTS:
In-Home Supportive Services: The IHSS program enables low-income individuals who are at least 65 years old, living with disabilities, or blind to remain in their own homes by paying for care providers to assist with personal care services (such as toileting, bathing, and grooming), domestic and related services (meal preparation, housecleaning, and the like), paramedical services, and protective supervision. Approximately 466,000 Californians receive IHSS each month, with about 98% receiving it as a Medicaid benefit.
IHSS is a county-administered service. When an individual is determined eligible for IHSS services by a county social worker, he or she is authorized for a certain number of hours of care. IHSS recipients are responsible for hiring, firing, directing, and supervising their IHSS workers. These responsibilities also include some administrative duties, such as scheduling and signing timesheets; however, the state handles payroll. There are currently about 460,554 eligible IHSS providers in the state; approximately 69% are relatives and an estimated 44% are relatives who live in the same home as the recipient. Providers must complete an enrollment process, including submitting fingerprint images for a criminal background check and participating in a provider orientation prior to receiving payment for services.
Public Authorities: While an IHSS recipient is considered to be the employer of his or her provider, counties are required to establish an entity to act as the employer of record and participate in collective bargaining regarding wages, benefits, and other terms and conditions of employment for IHSS providers. All but two counties have established public authorities for these purposes. Section 12301.6 of the Welfare and Institutions Code sets forth a number of requirements for public authorities, including, but not limited to: establishing a registry to assist recipients in finding a provider; investigating the qualifications and background of prospective providers; establishing a provider referral system; providing training for recipients and providers; and performing any other functions related to the delivery of IHSS.
Waiver Personal Care Services: Waivers enable states to apply for greater flexibility in their use of federal Medicaid dollars. Section 1915(c) waivers, known as Home and Community-Based Services (HCBS) waivers, permit states to use Medicaid (in California, Medi-Cal) dollars to provide long-term care services in home- and community-based settings as an alternative to the use of institutional settings. A variety of services can be offered under an HCBS waiver, including personal care, case management, adult day health, habilitation, home health aide, and other services.
Waiver Personal Care Services (WPCS) are authorized by DHCS and available to eligible Medi-Cal participants who are enrolled in either the HCBS In-Home Operations (IHO) or Nursing Facility/Acute Hospital (NF/AH) waivers. Both of these waivers offer services to Medi-Cal beneficiaries in their homes or communities; these are individuals who would otherwise qualify for care in a skilled nursing facility. Personal care services provide nonmedical assistance so that individuals can live with as much independence as possible. Generally, these services include assistance with activities of daily living, such as bathing, toileting, dressing, food preparation, and the like. Some eligible individuals who demonstrate need are able to supplement their approved IHSS hours with WPCS hours in order to reduce unmet need.
In general, the WPCS payroll and other program elements are administered the same as IHSS. Additionally, WPCS providers – like IHSS providers – are often relatives and often live with the recipient(s). DHCS does not have data on all relative types, but estimates that about 30% of WPCS providers are parents; about half of WPCS providers are live-in. Overall, DHCS data indicate that there are approximately 3,350 WPCS providers in California; however, many of these providers are also IHSS providers. While exact numbers are difficult to come by, the sponsors of this bill estimate that those providers that solely provide WPCS – i.e., the universe of providers impacted by this bill – number about 700.
Need for this bill: According to the author:
WPCS providers do the same important home health-care work as IHSS providers, yet they are viewed differently under the law as it relates to labor relations. This is because, unlike with IHSS, there is no clear employer of record for WPCS providers. WPCS allows disabled Medi-Cal consumers who need additional personal care hours to avoid institutionalization the ability to receive this care at home. While many WPCS providers also provide IHSS services, a small percentage do not. This small percentage of WPCS only providers were inadvertently excluded from the existing statutes which clarify who the employer of record is for IHSS providers. With no official employer of record, there is a disparity under the law regarding entitlement to myriad benefits. This bill merely seeks to ensure that similarly situated workers, performing the same work, are entitled to the same rights and benefits under the law.
PRIOR LEGISLATION:
AB 1682 (Honda), Chapter 90, Statutes of 1999, among other things, required each county to act as, or establish, an employer for IHSS personnel for purposes of collective bargaining and required DSS to establish a timetable for implementation of this requirement.
This bill authorizes a county to contract with either a nonprofit consortium or a public authority to be the employer of record for providers of waiver personal care services. The bill also requires the wages and benefits negotiated by the county for these providers to be equal to the wages and benefits for In-Home Supportive Services providers.
This bill could lead to unknown General Fund costs in the near term by giving counties collective bargaining authority over a state administered program that does not include a county share of cost. As with other program expansions, this is more appropriately considered as a part of the budget process.
Analysis Prepared by: Daphne Hunt / HUM. S. / (916) 319-2089 FN: 0002477
CONCURRENCE IN SENATE AMENDMENTS
CSA1 Bill Id:AB 432
Author:(Thurmond)
As Amended Ver:September 8, 2017
Majority vote
ASSEMBLY: | 75-0 | (May 30, 2017) | SENATE: | 39-0 | (September 14, 2017) |
Original Committee Reference: HUM. S.
SUMMARY: Establishes county public authorities and nonprofit consortia as the employers of record for providers of waiver personal care services (WPCS) and adopts related changes in order to establish parity between WPCS and in-home supportive services (IHSS) providers for purposes of labor relations.
Specifically, this bill:
- Exempts information regarding individuals paid by the state to provide WPCS from public disclosure pursuant to the California Public Records Act, with the exception of certain contact information that must be made available upon request to an exclusive bargaining agent and to any labor organization seeking representation rights, as specified.
- Adds to current law regarding the delivery of in-home supportive services (IHSS) the following provisions regarding waiver personal care services (WPCS):
- Authorizes a county board of supervisors to, at its option, contract with a nonprofit consortium or establish, by ordinance, a public authority to provide for the delivery of WPCS;
- Requires a public authority to be a corporate public body exercising public and essential governmental functions and that has all the powers necessary or convenient to carry out the delivery of WPCS;
- Stipulates that any public authority established to provide for the delivery of IHSS and WPCS and any nonprofit consortium contracting with a county shall be deemed to be the employer of providers of WPCS, as specified, but maintains recipients' right to hire, fire, and supervise the work of any WPCS personnel providing services to them.
- Requires the wages and benefits for WPCS providers, to the extent permitted by federal law, to be equal to the rates in each county for the individual provider mode of services in the IHSS program, as specified;
- Requires – as of the earlier of July 1, 2019, or an appropriation in the annual state Budget Act for health benefit costs – provider eligibility for benefits that are calculated based on a threshold number of hours worked to be determined based on the total number of monthly hours worked to provide IHSS and WPCS services.
- Requires each nonprofit consortium or public authority to, as specified:
- Comply with and be subject to all statutory and regulatory provisions applicable to the delivery of services by way of a provider of WPCS;
- Provide assistance to recipients in finding WPCS through the establishment of a registry;
- Perform criminal background checks, at the provider's expense, as a condition of a provider's continued enrollment in the program authorizing WPCS, deny an applicant from being placed on the registry or providing services to any recipient of WPCS services if that applicant has been convicted of specified criminal offenses, provide an individual a copy of his or her state-level criminal offender record information search response in the event of a denial that is based on this information, develop a written appeal process for individuals determined to be ineligible to receive payment for the provision of WPCS, and supply certain information to the Department of Social Services (DSS) regarding any such appeal;
- Establish a referral system under which WPCS personnel shall be referred to recipients;
- Perform any other function related to the delivery of WPCS;
- Not be deemed the employer of WPCS personnel for purposes of liability due to the negligence or intentional torts of the WPCS personnel; and
- In no case be held liable for action or omission of any WPCS personnel whom the nonprofit consortium or public authority did not list on its registry or otherwise refer to a recipient;
- Requires counties and the state be immune from liability in the administration of WPCS, as specified;
- Maintains the right of recipients to elect to receive services from WPCS personnel who are not referred to them by the public authority or nonprofit consortium;
- Stipulates that nothing in the section being amended by this bill shall be construed to impact the state's responsibility with respect to the state payroll system, unemployment insurance, or worker's compensation, among other things as specified, for providers of WPCS; and
- Requires the State Controller to make and transfer any deductions agreed to in collective bargaining from the wages of WPCS personnel who are employees of a public authority, as specified.
- Requires any public authority or nonprofit consortium to act as the employer to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment for individuals providing WPCS, as specified.
- Clarifies that, in addition to payment as currently stipulated in law, WPCS providers must also receive benefits on a schedule and in a manner by which providers of personal care services receive payment, as specified.
- Makes technical changes.
The Senate amendments:
- Add language exempting information regarding individuals paid by the state to provide WPCS from public disclosure pursuant to the California Public Records Act, with the exception of certain contact information that must be made available upon request to an exclusive bargaining agent and to any labor organization seeking representation rights to be used solely for organizing, representation, and assistance activities, as specified.
- Add language that requires the wages and benefits for WPCS providers, to the extent permitted by federal law, to be equal to the rates in each county for the individual provider mode of services in the IHSS program, as specified.
- Add language that requires – as of the earlier of July 1, 2019, or an appropriation in the annual state Budget Act for health benefit costs – provider eligibility for benefits that are calculated based on a threshold number of hours worked to be determined based on the total number of monthly hours worked to provide IHSS and WPCS services.
- Make technical changes.
EXISTING LAW:
- Establishes the IHSS program to provide supportive services, including domestic, protective supervision, personal care, and paramedical services as specified, to individuals who are aged, blind, or living with disabilities, and who are unable to perform the services themselves or remain safely in their homes without receiving these services. (Welfare and Institutions Code (WIC) 12300 et seq.)
- States that counties may choose to contract with a nonprofit consortium or establish a public authority for the provision of IHSS services. Requires nonprofit consortia and public authorities to, among other things, establish a registry to assist recipients in locating IHSS providers, and to investigate the background and qualifications of potential providers, as specified. (WIC 12301.6)
- Maintains an IHSS recipient's right to hire, fire, and supervise the work of any IHSS provider, regardless of the employer responsibilities of a public authority or nonprofit consortium, as specified. (WIC 12301.6)
- Defines "waiver personal care services" to mean personal care services authorized by the Department of Health Care Services (DHCS) for persons who are eligible for either nursing or model nursing facility waiver services. (WIC 14132.97 (a)(1))
- Establishes requirements, including eligibility criteria, for waiver personal care services. (WIC 14132.97)
- Authorizes in federal law the Medicaid Home and Community Based Services (HCBS) waiver program to offer alternatives to institutionalization of individuals, allowing for, among other things, the provision of personal care services. (42 United States Code (U.S.C.) 1396n, section 1915(c))
- Establishes the California Public Records Act for purposes of establishing requirements for the disclosure of state and local governmental records to the public. (Government Code (GOV) 6250 et seq.)
- Exempts information regarding individuals paid by the state to provide IHSS and certain personal care services from public disclosure pursuant to the California Public Records Act, with the exception of certain contact information that must be made available upon request to an exclusive bargaining agent and to any labor organization seeking representation rights, as specified. (GOV 6253.2)
FISCAL EFFECT: According to the Senate Appropriations Committee on August 21, 2017, this bill may result in significant costs of about $1,972,000 ($986,000 General Fund) in Fiscal Year 2017-18 and unknown, significant ongoing costs, likely around $1 million per year, to cover the costs of benefits for eligible WPCS providers.
COMMENTS:
In-Home Supportive Services: The IHSS program enables low-income individuals who are at least 65 years old, living with disabilities, or blind to remain in their own homes by paying for care providers to assist with personal care services (such as toileting, bathing, and grooming), domestic and related services (meal preparation, housecleaning, and the like), paramedical services, and protective supervision. Approximately 466,000 Californians receive IHSS each month, with about 98% receiving it as a Medicaid benefit.
IHSS is a county-administered service. When an individual is determined eligible for IHSS services by a county social worker, he or she is authorized for a certain number of hours of care. IHSS recipients are responsible for hiring, firing, directing, and supervising their IHSS workers. These responsibilities also include some administrative duties, such as scheduling and signing timesheets; however, the state handles payroll. There are currently about 460,554 eligible IHSS providers in the state; approximately 69% are relatives and an estimated 44% are relatives who live in the same home as the recipient. Providers must complete an enrollment process, including submitting fingerprint images for a criminal background check and participating in a provider orientation prior to receiving payment for services.
Public Authorities: While an IHSS recipient is considered to be the employer of his or her provider, counties are required to establish an entity to act as the employer of record and participate in collective bargaining regarding wages, benefits, and other terms and conditions of employment for IHSS providers. All but two counties have established public authorities for these purposes. Section 12301.6 of the Welfare and Institutions Code sets forth a number of requirements for public authorities, including, but not limited to: establishing a registry to assist recipients in finding a provider; investigating the qualifications and background of prospective providers; establishing a provider referral system; providing training for recipients and providers; and performing any other functions related to the delivery of IHSS.
Waiver Personal Care Services: Waivers enable states to apply for greater flexibility in their use of federal Medicaid dollars. Section 1915(c) waivers, known as Home and Community-Based Services (HCBS) waivers, permit states to use Medicaid (in California, Medi-Cal) dollars to provide long-term care services in home- and community-based settings as an alternative to the use of institutional settings. A variety of services can be offered under an HCBS waiver, including personal care, case management, adult day health, habilitation, home health aide, and other services.
Waiver Personal Care Services (WPCS) are authorized by DHCS and available to eligible Medi-Cal participants who are enrolled in either the HCBS In-Home Operations (IHO) or Nursing Facility/Acute Hospital (NF/AH) waivers. Both of these waivers offer services to Medi-Cal beneficiaries in their homes or communities; these are individuals who would otherwise qualify for care in a skilled nursing facility. Personal care services provide nonmedical assistance so that individuals can live with as much independence as possible. Generally, these services include assistance with activities of daily living, such as bathing, toileting, dressing, food preparation, and the like. Some eligible individuals who demonstrate need are able to supplement their approved IHSS hours with WPCS hours in order to reduce unmet need.
In general, the WPCS payroll and other program elements are administered the same as IHSS. Additionally, WPCS providers – like IHSS providers – are often relatives and often live with the recipient(s). DHCS does not have data on all relative types, but estimates that about 30% of WPCS providers are parents; about half of WPCS providers are live-in. Overall, DHCS data indicate that there are approximately 3,350 WPCS providers in California; however, many of these providers are also IHSS providers. While exact numbers are difficult to come by, the sponsors of this bill estimate that those providers that solely provide WPCS – i.e., the universe of providers impacted by this bill – number about 700.
Need for this bill: According to the author:
WPCS providers do the same important home health-care work as IHSS providers, yet they are viewed differently under the law as it relates to labor relations. This is because, unlike with IHSS, there is no clear employer of record for WPCS providers. WPCS allows disabled Medi-Cal consumers who need additional personal care hours to avoid institutionalization the ability to receive this care at home. While many WPCS providers also provide IHSS services, a small percentage do not. This small percentage of WPCS only providers were inadvertently excluded from the existing statutes which clarify who the employer of record is for IHSS providers. With no official employer of record, there is a disparity under the law regarding entitlement to myriad benefits. This bill merely seeks to ensure that similarly situated workers, performing the same work, are entitled to the same rights and benefits under the law.
PRIOR LEGISLATION:
AB 1682 (Honda), Chapter 90, Statutes of 1999, among other things, required each county to act as, or establish, an employer for IHSS personnel for purposes of collective bargaining and required DSS to establish a timetable for implementation of this requirement.
Analysis Prepared by: Daphne Hunt / HUM. S. / (916) 319-2089 FN: 00023900002390
SENATE COMMITTEE ON HUMAN SERVICES
Senator Wiener, Chair
2017 - 2018 Regular
Bill No: AB 432
Author: | Thurmond | ||
Version: | September 8, 2017 | Hearing Date: | September 13, 2017 |
Urgency: | No | Fiscal: | Yes |
Consultant: | Taryn Smith | ||
Subject: Personal care services
Hearing subject to Joint Rule 29.10(b)
SUMMARY
This bill establishes county public authorities and nonprofit consortia as the employers of record for providers of waiver personal care services (WPCS) and adopts related changes in order to establish parity between WPCS and in-home supportive services (IHSS) providers for purposes of labor relations.
ABSTRACT
Existing law:
- Requires state and local agencies to make public records available for inspection by the public, subject to specified criteria and with specified exceptions. Exempts from public inspection specified information regarding persons paid by the state to provide IHSS or personal care services, except that exclusive bargaining agent and labor organizations may obtain specified contact information for purposes of employee organizing, representation, and assistance activities of the labor organization.
- Establishes the IHSS program to provide supportive services for aged, blind, or disabled persons who are unable to perform the tasks themselves and who cannot safely remain in their homes unless such services are provided. Those supportive services include, but are not limited to, domestic services, heavy cleaning, personal care services, and accompaniment during travel to health-related appointments or to alternative resource sites, yard hazard abatement, protective supervision, and paramedical services, as defined.
- Permits counties to choose to contract with a nonprofit consortium or establish a public authority for the provision of IHSS services. Requires nonprofit consortia and public authorities to, among other things, establish a registry to assist recipients in locating IHSS providers, and to investigate the background and qualifications of potential providers, as specified.
- Provides that a nonprofit consortium or public authority is employer of record with specified employer responsibilities, but maintains an IHSS recipient’s right to hire, fire, and supervise the work of any IHSS provider.
- Defines “waiver personal care services” to mean personal care services authorized by the Department of Health Care Services (DHCS) for persons who are eligible for either nursing or model nursing facility waiver services.
- Establishes requirements, including eligibility criteria, for WPCS.
- Requires WPCS providers to receive payments on a schedule and in a manner by which personal care services providers are paid, as specified.
- Authorizes in federal law the Medicaid Home and Community Based Services (HCBS) waiver program to offer alternatives to institutionalization of individuals, allowing for, among other things, the provision of personal care services.
This bill:
- Expands protections within the California Public Records Act to include WPCS providers, except that exclusive bargaining agent and labor representatives are allowed access to personal contact information of WPCS workers for purpose of employee organizing, representation, and assistance activities of labor organizations.
- Incorporates into current law regarding the delivery of IHSS the following provisions regarding waiver personal care services (WPCS):
- Authorizes a county board of supervisors to, at its option, contract with a nonprofit consortium or establish, by ordinance, a public authority to provide for the delivery of WPCS;
- Requires a public authority to be a corporate public body exercising public and essential governmental functions and that has all the powers necessary or convenient to carry out the delivery of WPCS;
- Stipulates that any public authority established to provide for the delivery of IHSS and WPCS and any nonprofit consortium contracting with a county shall be deemed to be the employer of providers of WPCS, as specified, but maintains recipients’ right to hire, fire, and supervise the work of any WPCS personnel providing services to them.
- Requires that, to the extent permitted by federal law, wages and benefits for providers of WPCS shall be equal to the rates in each county for the individual provider mode of services in the IHSS program, as specified.
- Requires that, if eligibility for benefits requires a provider to work a threshold number of hours, eligibility shall be determined based on the aggregate number of monthly hours worked between IHSS and WPCS.
- Delays implementation of healthcare benefits for WPCS providers until July 1, 2019 or upon an appropriation for this purpose in the annual state Budget Act for health benefit costs, whichever occurs earlier.
- Requires each nonprofit consortium or public authority, as specified, to:
- Comply with and be subject to all statutory and regulatory provisions applicable to the delivery of services by way of a provider of WPCS;
- Provide assistance to recipients in finding WPCS through the establishment of a registry;
- Perform criminal background checks, as specified;
- Establish a referral system under which WPCS personnel shall be referred to recipients;
- Perform any other function related to the delivery of WPCS;
- Not be deemed the employer of WPCS personnel for purposes of liability due to the negligence or intentional torts of the WPCS personnel; and
- Provides that any nonprofit consortium contracting with a county is not liable for action or omission of any WPCS personnel whom the nonprofit consortium or public authority did not list on its registry or otherwise refer to a recipient;
- Requires counties and the state be immune from liability in the administration of WPCS, as specified;
- Maintains the right of recipients to elect to receive services from WPCS personnel who are not referred to them by the public authority or nonprofit consortium;
- Stipulates that this bill does not affect the state’s responsibility with respect to the state payroll system, unemployment insurance, or worker’s compensation, among other things as specified, for providers of WPCS; and
- Requires the State Controller to make and transfer any deductions agreed to in collective bargaining from the wages of WPCS personnel who are employees of a public authority, as specified.
- Requires any public authority or nonprofit consortium to act as the employer to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment for individuals providing WPCS, as specified.
- Provides that, in addition to payment as currently stipulated in law, WPCS providers must also receive benefits on a schedule and in a manner by which providers of personal care services receive payment, as specified.
- Makes technical changes.
FISCAL IMPACT
According to an analysis prepared by the Senate Appropriations Committee there will significant costs of about $1,972,000 ($986,000 General Fund) in FY 2017-18 and unknown, significant ongoing costs, likely around $1 million per year, to cover the costs of benefits for eligible WPCS providers.
BACKGROUND AND DISCUSSION
Purpose of the bill:
Counties have been required to act as, or to establish, an employer for IHSS providers for purposes of collective bargaining for more than 15 years. WPCS providers, who generally do the same work as IHSS providers, are not covered under the law that relates to labor relations. While many WPCS providers are also IHSS providers, a small percentage are not, and therefore are not afforded the same protections that exist for IHSS providers. According to the author, “With no official employer of record, there is a disparity under the law regarding entitlement to myriad benefits. It is time to bring about industry parity so that the WCPS providers can give the best care.”
In-Home Supportive Services
The IHSS program, which is administered at the state-level by the California Department of Social Services (CDSS) and at the local level by counties, provides in-home services for low-income aged, blind and disabled individuals who are unable to perform certain tasks themselves and who cannot safely remain in their homes unless these services are provided.
IHSS services may include domestic and related services (housework, meal preparation, laundry and shopping) and personal care services (toileting, bathing, and grooming). IHSS services also may include accompaniment to medical appointments, protective supervision for mentally-impaired recipients who may place themselves at risk of injury, and hazard or accident and paramedical services, when directed by a physician.
According to CDSS, approximately 466,500 Californians receive IHSS each month, with about 98 percent receiving it as a Medicaid benefit. The remaining two percent are state-only funded. As of February 2017, there were about 460,500 eligible IHSS providers in the state; approximately 69 percent of whom are relatives of the IHSS recipient, and 44 percent of whom are relatives who live in the same home as the recipient.
When an individual is determined to be eligible for IHSS services by a county social worker, he or she is authorized a certain number of hours of care. IHSS recipients are responsible for hiring, firing, directing, and supervising their IHSS workers. These responsibilities also include some administrative duties, such as scheduling and signing timesheets; however, the state handles payroll. Providers must complete an enrollment process, including submitting fingerprint images for a criminal background check and participating in a provider orientation prior to receiving payment for services.
Waiver Personal Care Services
Waivers enable states to apply for greater flexibility in their use of federal Medicaid dollars. HCBS waivers permit states to use Medicaid (Medi-Cal in California) dollars to provide long-term care services in home- and community-based settings as an alternative to the use of institutional settings. WPCS are available to eligible Medi-Cal participants who are enrolled in either the HCBS In-Home Operations or Nursing Facility/Acute Hospital waivers. Both of these waivers offer services to Medi-Cal beneficiaries in their homes or communities; otherwise these individuals would qualify for care in a skilled nursing facility.
Like services provided under IHSS, the WPCS provides nonmedical assistance so that individuals can live with as much independence as possible. Generally, these services include help with activities of daily living such as bathing, toileting, dressing, food preparation, and the like. Some eligible individuals are able to supplement their approved IHSS hours with WPCS hours in order to reduce unmet need.
WPCS providers – like IHSS providers – often are relatives and often live with the recipient(s). DHCS, which administers the WPCS program, estimates that about 30 percent of WPCS providers are parents of recipients and about half of WPCS providers are live-in. In general, the WPCS payroll and other program elements are administered in the same manner as IHSS. DHCS data indicates that there are approximately 3,350 WPCS providers in California, many of whom are also IHSS providers. While exact numbers are difficult to come by, the sponsors of this bill estimate that there are about 700 people who solely provide WPCS and therefore would be impacted by this bill.
Collective Bargaining and Public Authorities for IHSS
While IHSS recipients are considered to be the employers of their providers with the right to hire fire and supervise the work of the IHSS provider, counties are required to establish an entity to act as the employer of record and participate in collective bargaining regarding wages, benefits, and other terms and conditions of employment for IHSS providers. All but two counties have established public authorities for these purposes. Requirements for public authorities include establishing a registry to assist recipients in finding a provider; investigating the qualifications and background of prospective providers; establishing a provider referral system; providing training for recipients and providers; and performing any other functions related to the delivery of IHSS.
This bill proposes to afford WCPS providers the same collective bargaining, wages and benefits. It also proposes to allow exclusive bargaining agents and labor organizations to obtain specified contact information for purposes of employee organizing, representation, and assistance activities of the labor organization
SUPPORT/OPPOSITION
Arguments in support
The sponsor of the bill, California Association of Public Authorities, writes that AB 432 “seeks to establish parity between similarly situated providers of home care services by clarifying the employer of record for WPCS providers, similar to that which is established under current law for IHSS providers…These providers (numbering around 700 statewide) were inadvertently excluded from the IHSS employer of record statutes when originally implemented.”
Arguments in opposition
The Department of Finance is opposed to this bill because it:
- Results in state General Fund costs and pressures,
- Provides counties collective bargaining authority over a state-administered, non-county program, and
- May result in bargaining of different benefits for providers offering similar services.
Related legislation:
AB 1682 (Honda, Chapter 90, Statutes of 1999) among other things, required each county to act as, or establish, an employer for IHSS personnel for purposes of collective bargaining and required CDSS to establish a timetable for implementation of this requirement.
COMMENTS
Senate Rule 29.10(b) Hearing
AB 432 is back before this committee pursuant to Senate Rule 29.10(b), following amendments taken in the Senate on September 8, 2017. An earlier version of the bill was heard on July 11, 2017 and passed the committee on consent.
The prior version of the bill did not contain language that permits any exclusive bargaining agent and any labor organization to obtain copies of names, addresses, home telephone numbers, personal cellular telephone numbers, and personal email addresses of WPCS providers for the purpose of employee organizing, representation, and assistance activities of the labor organization. Like the rest of this bill, the amendment to permit release of WPCS providers’ personal contact information conforms to existing law for IHSS providers.
The other amendments dated September 8, 2017 also do the following:
- Make explicit that WPCS providers are eligible for healthcare benefits and have wage parity with IHSS provides.
- Allow WPCS and IHSS providers to accrue hours for healthcare benefits as an aggregate of both programs.
- Delay implementation of healthcare benefits for WPCS providers until 2019.
- Make other technical changes.
While the underlying policy essentially unchanged, amendments substantially alter the policy in that labor organizations would have access to personal contact information.
Per Senate Rule 29.10(b), this bill cannot be amended in this committee.
PRIOR VOTES
Assembly Floor: | 75 - 0 |
Assembly Appropriations Committee: | 17 - 0 |
Assembly Human Services Committee: | 7 - 0 |
POSITIONS
Support:
California Association of Public Authorities for IHSS (Sponsor)
American Federation of State, County and Municipal Employees
The In-Home Supportive Services Advisory Committee, San Bernardino
UDW/AFSCME Local 3930
SEIU
Oppose:
Department of Finance
-- END --
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 432
:
SENATE HUMAN SERVICES COMMITTEE: 7-0, 7/11/17
AYES: Wiener, Berryhill, Glazer, Leyva, McGuire, Nguyen, Portantino
SENATE APPROPRIATIONS COMMITTEE: 6-0, 9/1/17
AYES: Lara, Beall, Bradford, Hill, Nielsen, Wiener
NO VOTE RECORDED: Bates
SENATE HUMAN SERVICES COMMITTEE: 4-0, 9/13/17 (Pursuant to Senate Rule 29.10)
AYES: Wiener, Berryhill, Leyva, Nguyen
NO VOTE RECORDED: Glazer, McGuire, Portantino
ASSEMBLY FLOOR: 75-0, 5/30/17 - See last page for vote
SOURCE: California Association of Public Authorities
DIGEST:
This bill establishes county public authorities and nonprofit consortia as the employers of record for providers of waiver personal care services (WPCS) and adopts related changes in order to establish parity between WPCS and in-home supportive services (IHSS) providers for purposes of labor relations.
Senate Floor Amendments of 9/8/17 (1) expand protections within the California Public Records Act to include WPCS providers, except as specified; (2) allow labor representatives access to personal contact information of WPCS workers for purpose of employee organizing, representation, and assistance activities of labor organizations; (3) make explicit that WPCS providers are eligible for healthcare benefits and have wage parity with IHSS provides; (4) allow WPCS and IHSS providers to accrue hours for healthcare benefits as an aggregate of both programs; (5) delay implementation of healthcare benefits for WPCS providers until 2019; and (6) make other technical changes.
Existing law:
- Requires state and local agencies to make public records available for inspection by the public, subject to specified criteria and with specified exceptions. Exempts from public inspection specified information regarding persons paid by the state to provide IHSS or personal care services, except that exclusive bargaining agent and labor organizations may obtain specified contact information for purposes of employee organizing, representation, and assistance activities of the labor organization.
- Establishes the IHSS program to provide supportive services for aged, blind, or disabled persons who are unable to perform the tasks themselves and who cannot safely remain in their homes unless such services are provided. Those supportive services include, but are not limited to, domestic services, heavy cleaning, personal care services, and accompaniment during travel to health-related appointments or to alternative resource sites, yard hazard abatement, protective supervision, and paramedical services, as defined.
- Permits counties to choose to contract with a nonprofit consortium or establish a public authority for the provision of IHSS services. Requires nonprofit consortia and public authorities to, among other things, establish a registry to assist recipients in locating IHSS providers, and to investigate the background and qualifications of potential providers, as specified.
- Provides that a nonprofit consortium or public authority is employer of record with specified employer responsibilities, but maintains an IHSS recipient’s right to hire, fire, and supervise the work of any IHSS provider.
- Defines “waiver personal care services” to mean personal care services authorized by the Department of Health Care Services (DHCS) for persons who are eligible for either nursing or model nursing facility waiver services.
- Establishes requirements, including eligibility criteria, for WPCS.
- Requires WPCS providers to receive payments on a schedule and in a manner by which personal care services providers are paid, as specified.
- Authorizes in federal law the Medicaid Home and Community Based Services (HCBS) waiver program to offer alternatives to institutionalization of individuals, allowing for, among other things, the provision of personal care services.
This bill:
- Expands protections within the California Public Records Act to include WPCS providers, except that exclusive bargaining agent and labor representatives are allowed access to personal contact information of WPCS workers for purpose of employee organizing, representation, and assistance activities of labor organizations.
- Incorporates into current law regarding the delivery of IHSS the following provisions regarding WPCS:
- Authorizes a county board of supervisors to, at its option, contract with a nonprofit consortium or establish, by ordinance, a public authority to provide for the delivery of WPCS.
- Requires a public authority to be a corporate public body exercising public and essential governmental functions and that has all the powers necessary or convenient to carry out the delivery of WPCS.
- Stipulates that any public authority established to provide for the delivery of IHSS and WPCS and any nonprofit consortium contracting with a county shall be deemed to be the employer of providers of WPCS, as specified, but maintains recipients’ right to hire, fire, and supervise the work of any WPCS personnel providing services to them.
- Requires that, to the extent permitted by federal law, wages and benefits for providers of WPCS shall be equal to the rates in each county for the individual provider mode of services in the IHSS program, as specified.
- Requires that, if eligibility for benefits requires a provider to work a threshold number of hours, eligibility shall be determined based on the aggregate number of monthly hours worked between IHSS and WPCS.
- Delays implementation of healthcare benefits for WPCS providers until July 1, 2019 or upon an appropriation for this purpose in the annual state Budget Act for health benefit costs, whichever occurs earlier.
- Requires each nonprofit consortium or public authority, as specified, to:
- Comply with and be subject to all statutory and regulatory provisions applicable to the delivery of services by way of a provider of WPCS;
- Provide assistance to recipients in finding WPCS through the establishment of a registry;
- Perform criminal background checks, as specified;
- Establish a referral system under which WPCS personnel shall be referred to recipients;
- Perform any other function related to the delivery of WPCS;
- Not be deemed the employer of WPCS personnel for purposes of liability due to the negligence or intentional torts of the WPCS personnel; and
- Provides that any nonprofit consortium contracting with a county is not liable for action or omission of any WPCS personnel whom the nonprofit consortium or public authority did not list on its registry or otherwise refer to a recipient;
- Requires counties and the state be immune from liability in the administration of WPCS, as specified;
- Maintains the right of recipients to elect to receive services from WPCS personnel who are not referred to them by the public authority or nonprofit consortium;
- Stipulates that this bill does not affect the state’s responsibility with respect to the state payroll system, unemployment insurance, or worker’s compensation, among other things as specified, for providers of WPCS; and
- Requires the State Controller to make and transfer any deductions agreed to in collective bargaining from the wages of WPCS personnel who are employees of a public authority, as specified.
- Requires any public authority or nonprofit consortium to act as the employer to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment for individuals providing WPCS, as specified.
- Provides that, in addition to payment as currently stipulated in law, WPCS providers must also receive benefits on a schedule and in a manner by which providers of personal care services receive payment, as specified.
- Makes technical changes.
Background
Counties have been required to act as, or to establish, an employer for IHSS providers for purposes of collective bargaining for more than 15 years. WPCS providers, who generally do the same work as IHSS providers, are not covered under the law that relates to labor relations. While many WPCS providers are also IHSS providers, a small percentage are not, and therefore are not afforded the same protections that exist for IHSS providers. According to the author, “With no official employer of record, there is a disparity under the law regarding entitlement to myriad benefits. It is time to bring about industry parity so that the WCPS providers can give the best care.”
In-Home Supportive Services
The IHSS program, which is administered at the state-level by the California Department of Social Services (CDSS) and at the local level by counties, provides in-home services for low-income aged, blind and disabled individuals who are unable to perform certain tasks themselves and who cannot safely remain in their homes unless these services are provided.
IHSS services may include domestic and related services (housework, meal preparation, laundry and shopping) and personal care services (toileting, bathing, and grooming). IHSS services also may include accompaniment to medical appointments, protective supervision for mentally-impaired recipients who may place themselves at risk of injury, and hazard or accident and paramedical services, when directed by a physician.
According to CDSS, approximately 466,500 Californians receive IHSS each month, with about 98 percent receiving it as a Medicaid benefit. The remaining two percent are state-only funded. As of February 2017, there were about 460,500 eligible IHSS providers in the state; approximately 69 percent of whom are relatives of the IHSS recipient, and 44 percent of whom are relatives who live in the same home as the recipient.
When an individual is determined to be eligible for IHSS services by a county social worker, he or she is authorized a certain number of hours of care. IHSS recipients are responsible for hiring, firing, directing, and supervising their IHSS workers. These responsibilities also include some administrative duties, such as scheduling and signing timesheets; however, the state handles payroll. Providers must complete an enrollment process, including submitting fingerprint images for a criminal background check and participating in a provider orientation prior to receiving payment for services.
Waiver Personal Care Services
Waivers enable states to apply for greater flexibility in their use of federal Medicaid dollars. HCBS waivers permit states to use Medicaid (Medi-Cal in California) dollars to provide long-term care services in home- and community-based settings as an alternative to the use of institutional settings. WPCS are available to eligible Medi-Cal participants who are enrolled in either the HCBS In-Home Operations or Nursing Facility/Acute Hospital waivers. Both of these waivers offer services to Medi-Cal beneficiaries in their homes or communities; otherwise these individuals would qualify for care in a skilled nursing facility.
Like services provided under IHSS, the WPCS provides nonmedical assistance so that individuals can live with as much independence as possible. Generally, these services include help with activities of daily living such as bathing, toileting, dressing, food preparation, and the like. Some eligible individuals are able to supplement their approved IHSS hours with WPCS hours in order to reduce unmet need.
WPCS providers – like IHSS providers – often are relatives and often live with the recipient(s). DHCS, which administers the WPCS program, estimates that about 30 percent of WPCS providers are parents of recipients and about half of WPCS providers are live-in. In general, the WPCS payroll and other program elements are administered in the same manner as IHSS. DHCS data indicates that there are approximately 3,350 WPCS providers in California, many of whom are also IHSS providers. While exact numbers are difficult to come by, the sponsors of this bill estimate that there are about 700 people who solely provide WPCS and therefore would be impacted by this bill.
Collective Bargaining and Public Authorities for IHSS
While IHSS recipients are considered to be the employers of their providers with the right to hire fire and supervise the work of the IHSS provider, counties are required to establish an entity to act as the employer of record and participate in collective bargaining regarding wages, benefits, and other terms and conditions of employment for IHSS providers. All but two counties have established public authorities for these purposes. Requirements for public authorities include establishing a registry to assist recipients in finding a provider; investigating the qualifications and background of prospective providers; establishing a provider referral system; providing training for recipients and providers; and performing any other functions related to the delivery of IHSS.
This bill proposes to afford WCPS providers the same collective bargaining, wages and benefits. It also proposes to allow exclusive bargaining agents and labor organizations to obtain specified contact information for purposes of employee organizing, representation, and assistance activities of the labor organization
Related/Prior Legislation
AB 1682 (Honda, Chapter 90, Statutes of 1999) required, among other things, each county to act as, or establish, an employer for IHSS personnel for purposes of collective bargaining and required CDSS to establish a timetable for implementation of this requirement.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Senate Appropriations Committee, significant costs of about $1,972,000 ($986,000 General Fund) in FY 2017-18 and unknown, significant ongoing costs, likely around $1 million per year, to cover the costs of benefits for eligible WPCS providers.
California Association of Public Authorities (source)
American Federation of State, County and Municipal Employees
The In-Home Supportive Services Advisory Committee, San Bernardino
UDW/AFSCME Local 3930
SEIU
OPPOSITION: (Verified 9/13/17)
Department of Finance
ARGUMENTS IN SUPPORT: The sponsor of the bill, California Association of Public Authorities, writes that AB 432 “seeks to establish parity between similarly situated providers of home care services by clarifying the employer of record for WPCS providers, similar to that which is established under current law for IHSS providers…These providers (numbering around 700 statewide) were inadvertently excluded from the IHSS employer of record statutes when originally implemented.”
ARGUMENTS IN OPPOSITION: The Department of Finance is opposed to this bill because it:
- Results in state General Fund costs and pressures,
- Provides counties collective bargaining authority over a state-administered, non-county program, and
- May result in bargaining of different benefits for providers offering similar services.
ASSEMBLY FLOOR: 75-0, 5/30/17
AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, Chávez, Chiu, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon
NO VOTE RECORDED: Travis Allen, Chau, Chen, Choi, Eggman
9/13/17 18:38:02
**** END ****
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 432
:
SENATE HUMAN SERVICES COMMITTEE: 7-0, 7/11/17
AYES: Wiener, Berryhill, Glazer, Leyva, McGuire, Nguyen, Portantino
SENATE APPROPRIATIONS COMMITTEE: 6-0, 9/1/17
AYES: Lara, Beall, Bradford, Hill, Nielsen, Wiener
NO VOTE RECORDED: Bates
ASSEMBLY FLOOR: 75-0, 5/30/17 - See last page for vote
SOURCE: California Association of Public Authorities
DIGEST:
This bill establishes county public authorities and nonprofit consortia as the employers of record for providers of waiver personal care services (WPCS) and adopts related changes in order to establish parity between WPCS and in-home supportive services (IHSS) providers for purposes of labor relations.
Existing law:
- Establishes the IHSS program to provide supportive services for aged, blind, or disabled persons who are unable to perform the tasks themselves and who cannot safely remain in their homes unless such services are provided. Those supportive services include, but are not limited to, domestic services, heavy cleaning, personal care services, and accompaniment during travel to health-related appointments or to alternative resource sites, yard hazard abatement, protective supervision, and paramedical services, as defined.
- Permits counties to choose to contract with a nonprofit consortium or establish a public authority for the provision of IHSS services. Requires nonprofit consortia and public authorities to, among other things, establish a registry to assist recipients in locating IHSS providers, and to investigate the background and qualifications of potential providers, as specified.
- Provides that a nonprofit consortium or public authority is employer of record with specified employer responsibilities, but maintains an IHSS recipient’s right to hire, fire, and supervise the work of any IHSS provider.
- Defines “waiver personal care services” to mean personal care services authorized by the Department of Health Care Services (DHCS) for persons who are eligible for either nursing or model nursing facility waiver services.
- Establishes requirements, including eligibility criteria, for waiver personal care services.
- Requires WPCS providers to receive payments on a schedule and in a manner by which personal care services providers are paid, as specified.
- Authorizes in federal law the Medicaid Home and Community Based Services (HCBS) waiver program to offer alternatives to institutionalization of individuals, allowing for, among other things, the provision of personal care services.
This bill:
- Adds to current law regarding the delivery of IHSS the following provisions regarding waiver personal care services (WPCS):
- Authorizes a county board of supervisors to, at its option, contract with a nonprofit consortium or establish, by ordinance, a public authority to provide for the delivery of WPCS;
- Requires a public authority to be a corporate public body exercising public and essential governmental functions and that has all the powers necessary or convenient to carry out the delivery of WPCS;
- Stipulates that any public authority established to provide for the delivery of IHSS and WPCS and any nonprofit consortium contracting with a county shall be deemed to be the employer of providers of WPCS, as specified, but maintains recipients’ right to hire, fire, and supervise the work of any WPCS personnel providing services to them.
- Requires each nonprofit consortium or public authority, as specified, to:
- Comply with and be subject to all statutory and regulatory provisions applicable to the delivery of services by way of a provider of WPCS;
- Provide assistance to recipients in finding WPCS through the establishment of a registry;
- Perform criminal background checks, as specified;
- Establish a referral system under which WPCS personnel shall be referred to recipients;
- Perform any other function related to the delivery of WPCS;
- Not be deemed the employer of WPCS personnel for purposes of liability due to the negligence or intentional torts of the WPCS personnel; and
- In no case be held liable for action or omission of any WPCS personnel whom the nonprofit consortium or public authority did not list on its registry or otherwise refer to a recipient;
- Requires counties and the state be immune from liability in the administration of WPCS, as specified;
- Maintains the right of recipients to elect to receive services from WPCS personnel who are not referred to them by the public authority or nonprofit consortium;
- Stipulates that nothing in the section being amended by this bill shall be construed to impact the state’s responsibility with respect to the state payroll system, unemployment insurance, or worker’s compensation, among other things as specified, for providers of WPCS; and
- Requires the State Controller to make and transfer any deductions agreed to in collective bargaining from the wages of WPCS personnel who are employees of a public authority, as specified.
- Requires any public authority or nonprofit consortium to act as the employer to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment for individuals providing WPCS, as specified.
- Clarifies that, in addition to payment as currently stipulated in law, WPCS providers must also receive benefits on a schedule and in a manner by which providers of personal care services receive payment, as specified.
- Makes technical changes.
Background
Counties have been required to act as, or establish, an employer for IHSS providers for purposes of collective bargaining for more than 15 years. WPCS providers, who generally do the same work as IHSS providers, are not covered under the law that relates to labor relations. While many WPCS providers are also IHSS providers, a small percentage are not, and therefore are not afforded the same protections that exist for IHSS providers. According to the author, “With no official employer of record, there is a disparity under the law regarding entitlement to myriad benefits. It is time to bring about industry parity so that the WCPS providers can give the best care.”
In-Home Supportive Services
The IHSS program, which is administered at the state-level by the California Department of Social Services (CDSS) and at the local level by counties, provides in-home services for low-income aged, blind and disabled individuals who are unable to perform certain tasks themselves and who cannot safely remain in their homes unless these services are provided.
IHSS services may include domestic and related services (housework, meal preparation, laundry and shopping) and personal care services (toileting, bathing, and grooming). IHSS services also may include accompaniment to medical appointments, protective supervision for mentally-impaired recipients who may place themselves at risk of injury, and hazard or accident and paramedical services, when directed by a physician.
According to CDSS, approximately 466,500 Californians receive IHSS each month, with about 98 percent receiving it as a Medicaid benefit. The remaining two percent are state-only funded. As of February 2017, there were about 460,500 eligible IHSS providers in the state; approximately 69 percent of whom are relatives of the IHSS recipient, and 44 percent of whom are relatives who live in the same home as the recipient.
When an individual is determined to be eligible for IHSS services by a county social worker, he or she is authorized a certain number of hours of care. IHSS recipients are responsible for hiring, firing, directing, and supervising their IHSS workers. These responsibilities also include some administrative duties, such as scheduling and signing timesheets; however, the state handles payroll. Providers must complete an enrollment process, including submitting fingerprint images for a criminal background check and participating in a provider orientation prior to receiving payment for services.
Waiver Personal Care Services
Waivers enable states to apply for greater flexibility in their use of federal Medicaid dollars. HCBS waivers permit states to use Medicaid (Medi-Cal in California) dollars to provide long-term care services in home- and community-based settings as an alternative to the use of institutional settings. WPCS are available to eligible Medi-Cal participants who are enrolled in either the HCBS In-Home Operations or Nursing Facility/Acute Hospital waivers. Both of these waivers offer services to Medi-Cal beneficiaries in their homes or communities; otherwise these individuals would qualify for care in a skilled nursing facility.
Like services provided under IHSS, the WPCS provides nonmedical assistance so that individuals can live with as much independence as possible. Generally, these services include help with activities of daily living such as bathing, toileting, dressing, food preparation, and the like. Some eligible individuals who demonstrate need are able to supplement their approved IHSS hours with WPCS hours in order to reduce unmet need.
WPCS providers – like IHSS providers – often are relatives and often live with the recipient(s). DHCS, which administers the WPCS program, estimates that about 30 percent of WPCS providers are parents of recipients and about half of WPCS providers are live-in. In general, the WPCS payroll and other program elements are administered in the same manner as IHSS. DHCS data indicates that there are approximately 3,350 WPCS providers in California, many of whom are also IHSS providers. While exact numbers are difficult to come by, the sponsors of this bill estimate that there are about 700 people who solely provide WPCS and therefore would be impacted by this bill.
Collective Bargaining and Public Authorities for IHSS
While IHSS recipients are considered to be the employers of their providers, counties are required to establish an entity to act as the employer of record and participate in collective bargaining regarding wages, benefits, and other terms and conditions of employment for IHSS providers. All but two counties have established public authorities for these purposes. Requirements for public authorities, include establishing a registry to assist recipients in finding a provider; investigating the qualifications and background of prospective providers; establishing a provider referral system; providing training for recipients and providers; and performing any other functions related to the delivery of IHSS.
Related/Prior Legislation
AB 106 (Ting, 2017) makes changes to IHSS MOU and collective bargaining as part of the elimination of CCI.
SB 1036 (Committee on Budget and Fiscal Review, Chapter 45, Statutes of 2012) created the IHSS components of the CCI.
AB 1682 (Honda, Chapter 90, Statutes of 1999) among other things, required each county to act as, or establish, an employer for IHSS personnel for purposes of collective bargaining and required CDSS to establish a timetable for implementation of this requirement.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Senate Appropriations Committee, this bill will likely have significant costs of about $1,972,000 ($986,000 General Fund) in FY 2017-18 and unknown, significant ongoing costs, likely around $1 million per year, to cover the costs of benefits for eligible WPCS providers.
California Association of Public Authorities (source)
American Federation of State, County and Municipal Employees
The In-Home Supportive Services Advisory Committee, San Bernardino
UDW/AFSCME Local 3930
Department of Finance
ARGUMENTS IN SUPPORT: The sponsor of this bill, California Association of Public Authorities (CAPA) writes that AB 432 “seeks to establish parity between similarly situated providers of home care services by clarifying the employer of record for Waiver Provider Care Services providers, similar to that which is established under current law for In-Home Support Services (IHSS) providers.”
ARGUMENTS IN OPPOSITION: The Department of Finance is opposed to AB 432 for the following reasons, “It results in state General Fund costs and pressures, it provides counties collective bargaining authority over a state-administered, non-county program, and may result in bargaining of different benefits for providers offering similar services.”
ASSEMBLY FLOOR: 75-0, 5/30/17
AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, Chávez, Chiu, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon
NO VOTE RECORDED: Travis Allen, Chau, Chen, Choi, Eggman
9/3/17 17:49:00
**** END ****
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2017 - 2018 Regular Session
AB 432 (Thurmond) - Personal care services
Version: July 13, 2017 | Policy Vote: HUMAN S. 7 - 0 |
Urgency: No | Mandate: No |
Hearing Date: August 21, 2017 | Consultant: Debra Cooper |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
AB 432 would establish county public authorities and nonprofit consortia as the employers of record for providers of waiver personal care services (WPCS) and would adopt related changes in order to establish parity between WPCS and in-home supportive services (IHSS) providers for purposes of labor relations.
Fiscal Impact:
- Significant costs of about $1,972,000 ($986,000 General Fund) in FY 2017-18 and unknown, significant ongoing costs, likely around $1 million per year, to cover the costs of benefits for eligible WPCS providers.
Background:
The IHSS program, administered by CDSS and counties provides in-home services for low-income aged, blind, and disabled individuals who are unable to perform certain tasks themselves and cannot safely remain in their homes unless these services are provided. According to CDSS, approximately 466,500 Californians receive IHSS each month – 2% of whom are state-only funded. As of February 2017, there were about 460,500 eligible IHSS providers in the state – approximately 69% of whom are relatives of the IHSS recipient and 44% of whom are relatives who live in the same home as the recipient.
WPCS are available to eligible Medi-Cal participants who are enrolled in either the Medicaid Home and Community Based Services In-Home Operations or Nursing Facility/Acute Hospital waivers. These waivers offer services to Medi-Cal beneficiaries in their homes or communities. Like IHSS, WPCS provides nonmedical assistance so that individuals can live with as much independence as possible. WPCS providers, like IHSS providers, are often relatives of the recipients and often live with the recipient.
In general, the WPCS payroll is administered in the same manner as IHSS. However, WPCS providers are not covered under the law that relates to labor relations. While many WPCS providers are also IHSS provers, a small percentage are not, and therefore do not have the same protections that exist for IHSS providers.
Proposed Law:
This bill would add to current law regarding the delivery of IHSS the following provisions regarding WPCS:
- Authorize a county board of supervisors to, at its option, contract with a nonprofit consortium or establish, by ordinance, a public authority to provide for the delivery of WPCS;
- Require a public authority to be a corporate public body exercising public and essential governmental functions and that has all the powers necessary or convenient to carry out the delivery of WPCS;
- Stipulate that any public authority established to provide for the delivery of IHSS and WPCS and any nonprofit consortium contracting with a county shall be deemed to be the employer of providers of WPCS, as specified, but maintains recipients’ right to hire, fire, and supervise the work of any WPCS personnel providing services to them.
- Specify the requirements of each nonprofit consortium or public authority;
- Require counties and the state to be immune from liability in the administration of WPCS, as specified;
- Maintain the right of recipients to elect to receive services from WPCS personnel who are not referred to them by the public authority or nonprofit consortium;
- Specify that the provisions in this section do not affect the state’s responsibility with respect to the state payroll system, unemployment insurance, or worker’s compensation, among other things as specified, for providers of WPCS;
- Require the State Controller to make and transfer any deductions agreed to in collective bargaining from the wages of WPCS personnel who are employees of a public authority, as specified;
- Require any public authority or nonprofit consortium to act as the employer to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment for individuals providing WPCS, as specified;
- Clarify that, in addition to payment as currently stipulated in law, WPCS providers must also receive benefits on a schedule and in a manner by which providers of personal care services receive payment, as specified.
Related Legislation:
AB 106 (Ting, 2017), would make changes to the IHSS maintenance-of-effort requirement and collective bargaining as part of the elimination of CCI. This bill is on the Senate Inactive File.
SB 1036 (Committee on Budget and Fiscal Review, Chapter 45, Statutes of 2012) created the IHSS components of the CCI.
AB 1682 (Honda, Chapter 90, Statutes of 1999) among other things, required each county to act as, or establish, an employer for IHSS personnel for purposes of collective bargaining and required CDSS to establish a timetable for implementation of this requirement.
Staff Comments:
Assumptions made in calculating the estimated cost include assuming the cost for benefits per WPCS provider is $2,896 and assuming that approximately 680 (66%) of the eligible WPCS will receive benefits.
-- END --
SENATE COMMITTEE ON HUMAN SERVICES
Senator Wiener, Chair
2017 - 2018 Regular
Bill No: AB 432
Author: | Thurmond | ||
Version: | March 29, 2017 | Hearing Date: | July 11, 2017 |
Urgency: | No | Fiscal: | Yes |
Consultant: | Taryn Smith | ||
Subject: Personal care services
SUMMARY
This bill establishes county public authorities and nonprofit consortia as the employers of record for providers of waiver personal care services (WPCS) and adopts related changes in order to establish parity between WPCS and in-home supportive services (IHSS) providers for purposes of labor relations.
ABSTRACT
Existing law:
- Establishes the IHSS program to provide supportive services for aged, blind, or disabled persons who are unable to perform the tasks themselves and who cannot safely remain in their homes unless such services are provided. Those supportive services include, but are not limited to, domestic services, heavy cleaning, personal care services, and accompaniment during travel to health-related appointments or to alternative resource sites, yard hazard abatement, protective supervision, and paramedical services, as defined. (WIC 12300 et seq.)
- States that counties may choose to contract with a nonprofit consortium or establish a public authority for the provision of IHSS services. Requires nonprofit consortia and public authorities to, among other things, establish a registry to assist recipients in locating IHSS providers, and to investigate the background and qualifications of potential providers, as specified. (WIC 12301.6)
- Provides that a nonprofit consortium or public authority is employer of record with specified employer responsibilities, but maintains an IHSS recipient’s right to hire, fire, and supervise the work of any IHSS provider. (WIC 12301.6) (c)
- Defines “waiver personal care services” to mean personal care services authorized by the Department of Health Care Services (DHCS) for persons who are eligible for either nursing or model nursing facility waiver services. (WIC 14132.97 (a)(1))
- Establishes requirements, including eligibility criteria, for waiver personal care services. (WIC 14132.97)
- Requires WPCS providers to receive payments on a schedule and in a manner by which personal care services providers are paid, as specified. (WIC 14132.897 (d)(4))
- Authorizes in federal law the Medicaid Home and Community Based Services (HCBS) waiver program to offer alternatives to institutionalization of individuals, allowing for, among other things, the provision of personal care services. (42 U.S.C. 1396n, section 1915(c))
This bill:
- Adds to current law regarding the delivery of in-home supportive services (IHSS) the following provisions regarding waiver personal care services (WPCS):
- Authorizes a county board of supervisors to, at its option, contract with a nonprofit consortium or establish, by ordinance, a public authority to provide for the delivery of WPCS;
- Requires a public authority to be a corporate public body exercising public and essential governmental functions and that has all the powers necessary or convenient to carry out the delivery of WPCS;
- Stipulates that any public authority established to provide for the delivery of IHSS and WPCS and any nonprofit consortium contracting with a county shall be deemed to be the employer of providers of WPCS, as specified, but maintains recipients’ right to hire, fire, and supervise the work of any WPCS personnel providing services to them.
- Requires each nonprofit consortium or public authority to, as specified:
- Comply with and be subject to all statutory and regulatory provisions applicable to the delivery of services by way of a provider of WPCS;
- Provide assistance to recipients in finding WPCS through the establishment of a registry;
- Perform criminal background checks, at the provider’s expense, as a condition of a provider’s continued enrollment in the program authorizing WPCS, deny an applicant from being placed on the registry or providing services to any recipient of WPCS services if that applicant has been convicted of specified criminal offenses, provide an individual a copy of his or her state-level criminal offender record information search response in the event of a denial that is based on this information, develop a written appeal process for individuals determined to be ineligible to receive payment for the provision of WPCS, and supply certain information to CDSS regarding any such appeal;
- Establish a referral system under which WPCS personnel shall be referred to recipients;
- Perform any other function related to the delivery of WPCS;
- Not be deemed the employer of WPCS personnel for purposes of liability due to the negligence or intentional torts of the WPCS personnel; and
- In no case be held liable for action or omission of any WPCS personnel whom the nonprofit consortium or public authority did not list on its registry or otherwise refer to a recipient;
- Requires counties and the state be immune from liability in the administration of WPCS, as specified;
- Maintains the right of recipients to elect to receive services from WPCS personnel who are not referred to them by the public authority or nonprofit consortium;
- Stipulates that nothing in the section being amended by this bill shall be construed to impact the state’s responsibility with respect to the state payroll system, unemployment insurance, or worker’s compensation, among other things as specified, for providers of WPCS; and
- Requires the State Controller to make and transfer any deductions agreed to in collective bargaining from the wages of WPCS personnel who are employees of a public authority, as specified.
- Requires any public authority or nonprofit consortium to act as the employer to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment for individuals providing WPCS, as specified.
- Clarifies that, in addition to payment as currently stipulated in law, WPCS providers must also receive benefits on a schedule and in a manner by which providers of personal care services receive payment, as specified.
- Makes technical changes.
FISCAL IMPACT
According to an analysis prepared by the Assembly Appropriations Committee there will be an estimated ongoing annual costs of $469,000 ($206,000 GF) for public authorities to administer the program.
BACKGROUND AND DISCUSSION
Purpose of the bill:
Counties have been required to act as, or establish, an employer for IHSS providers for purposes of collective bargaining for more than 15 years. WPCS providers, who generally do the same work as IHSS providers, are not covered under the law that relates to labor relations. While many WPCS providers are also IHSS providers, a small percentage are not, and therefore are not afforded the same protections that exist for IHSS providers. According to the author, “With no official employer of record, there is a disparity under the law regarding entitlement to myriad benefits. It is time to bring about industry parity so that the WCPS providers can give the best care.”
In-Home Supportive Services
The IHSS program, which is administered at the state-level by the California Department of Social Services (CDSS) and at the local level by counties, provides in-home services for low-income aged, blind and disabled individuals who are unable to perform certain tasks themselves and who cannot safely remain in their homes unless these services are provided.
IHSS services may include domestic and related services (housework, meal preparation, laundry and shopping) and personal care services (toileting, bathing, and grooming). IHSS services also may include accompaniment to medical appointments, protective supervision for mentally-impaired recipients who may place themselves at risk of injury, and hazard or accident and paramedical services, when directed by a physician.
According to CDSS, approximately 466,500 Californians receive IHSS each month, with about 98 percent receiving it as a Medicaid benefit. The remaining two percent are state-only funded. As of February 2017, there were about 460,500 eligible IHSS providers in the state; approximately 69 percent of whom are relatives of the IHSS recipient, and 44 percent of whom are relatives who live in the same home as the recipient.
When an individual is determined to be eligible for IHSS services by a county social worker, he or she is authorized a certain number of hours of care. IHSS recipients are responsible for hiring, firing, directing, and supervising their IHSS workers. These responsibilities also include some administrative duties, such as scheduling and signing timesheets; however, the state handles payroll. Providers must complete an enrollment process, including submitting fingerprint images for a criminal background check and participating in a provider orientation prior to receiving payment for services.
Waiver Personal Care Services
Waivers enable states to apply for greater flexibility in their use of federal Medicaid dollars. HCBS waivers permit states to use Medicaid (Medi-Cal in California) dollars to provide long-term care services in home- and community-based settings as an alternative to the use of institutional settings. WPCS are available to eligible Medi-Cal participants who are enrolled in either the HCBS In-Home Operations (IHO) or Nursing Facility/Acute Hospital (NF/AH) waivers. Both of these waivers offer services to Medi-Cal beneficiaries in their homes or communities; these are individuals who would otherwise qualify for care in a skilled nursing facility.
Like services provided via IHSS, the WPCS provides nonmedical assistance so that individuals can live with as much independence as possible. Generally, these services include help with activities of daily living such as bathing, toileting, dressing, food preparation, and the like. Some eligible individuals who demonstrate need are able to supplement their approved IHSS hours with WPCS hours in order to reduce unmet need.
WPCS providers – like IHSS providers –often are relatives and often live with the recipient(s). DHCS, which administers the WPCS program, estimates that about 30 percent of WPCS providers are parents of recipients and about half of WPCS providers are live-in. In general, the WPCS payroll and other program elements are administered in the same manner as IHSS. DHCS data indicate that there are approximately 3,350 WPCS providers in California, many of whom are also IHSS providers. While exact numbers are difficult to come by, the sponsors of this bill estimate that there are about 700 people who solely provide WPCS and therefore would be impacted by this bill.
Collective Bargaining and Public Authorities for IHSS
While IHSS recipients are considered to be the employers of their providers, counties are required to establish an entity to act as the employer of record and participate in collective bargaining regarding wages, benefits, and other terms and conditions of employment for IHSS providers. All but two counties have established public authorities for these purposes. Requirements for public authorities, include, but are not limited to establishing a registry to assist recipients in finding a provider; investigating the qualifications and background of prospective providers; establishing a provider referral system; providing training for recipients and providers; and performing any other functions related to the delivery of IHSS.
Beginning in 2012, as part of the Coordinated Care Initiative (CCI) demonstration project, an IHSS “statewide authority” was created and collective bargaining over IHSS provider wages and benefits was transitioned from the local level to the state for the seven counties that participated in CCI.
While CCI was only operative in the seven participating counties, CCI affected the IHSS program on a statewide level, because it CCI also replaced counties’ historical share of cost for the IHSS program with a maintenance‑of‑effort (IHSS MOE) requirement, which was beneficial to the counties. However, state law included a “poison pill” provision that gave the Department of Finance (DOF) authority to discontinue the CCI without having to seek legislative approval if the CCI was shown not to generate net General Fund savings.
In conjunction with the release of the Governor’s 2017‑18 budget, the DOF made the determination that the CCI was not generating net General Fund savings, leading the Governor to eliminate the CCI pursuant to the poison pill provision. Ultimately, the budget bill (AB 106, Committee on Budget, Statutes of 2017) makes statutory changes necessary to continue the components of the CCI that are not related to IHSS, implement a revised IHSS MOE and return collective bargaining for IHSS to the local counties.
Related legislation:
AB 106 (Ting, 2017), makes changes to IHSS MOU and collective bargaining as part of the elimination of CCI. It is awaiting Governor’s action.
AB 1682 (Honda, Chapter 90, Statutes of 1999) among other things, required each county to act as, or establish, an employer for IHSS personnel for purposes of collective bargaining and required CDSS to establish a timetable for implementation of this requirement.
SB 1036 (Committee on Budget and Fiscal Review, Chapter 45, Statutes of 2012) created the IHSS components of the CCI.
COMMENTS
The committee recommends the following amendment to address an apparent drafting error:
(3) The entity entities described in Section 12301.6, in accordance with Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code, shall be required to act as the employer to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment of individuals providing waiver personal care services.
PRIOR VOTES
Assembly Floor: | 75 - 0 |
Assembly Appropriations Committee: | 17 - 0 |
Assembly Human Services Committee: | 7 - 0 |
POSITIONS
Support:
California Association of Public Authorities for IHSS (Sponsor)
American Federation of State, County and Municipal Employees
The In-Home Supportive Services Advisory Committee, San Bernardino
UDW/AFSCME Local 3930
Oppose:
None received.
-- END --
ASSEMBLY THIRD READING
ATR Bill Id:AB 432
Author:(Thurmond)
As Amended Ver:March 29, 2017
Majority vote
Committee | Votes | Ayes | Noes |
Human Services | 7-0 | Rubio, Choi, Arambula, Gonzalez Fletcher, Maienschein, Mark Stone, Thurmond | |
Appropriations | 17-0 | Gonzalez Fletcher, Bigelow, Bloom, Bocanegra, Bonta, Brough, Calderon, McCarty, Quirk, Fong, Friedman, Gallagher, Eduardo Garcia, Gray, Muratsuchi, Obernolte, Reyes |
|
SUMMARY: Establishes county public authorities and nonprofit consortia as the employers of record for providers of waiver personal care services (WPCS) and adopts related changes in order to establish parity between WPCS and in-home supportive services (IHSS) providers for purposes of labor relations. Specifically, this bill:
- Adds to current law regarding the delivery of in-home supportive services (IHSS) the following provisions regarding waiver personal care services (WPCS):
- Authorizes a county board of supervisors to, at its option, contract with a nonprofit consortium or establish, by ordinance, a public authority to provide for the delivery of WPCS;
- Requires a public authority to be a corporate public body exercising public and essential governmental functions and that has all the powers necessary or convenient to carry out the delivery of WPCS;
- Stipulates that any public authority established to provide for the delivery of IHSS and WPCS and any nonprofit consortium contracting with a county shall be deemed to be the employer of providers of WPCS, as specified, but maintains recipients’ right to hire, fire, and supervise the work of any WPCS personnel providing services to them.
- Requires each nonprofit consortium or public authority to, as specified:
- Comply with and be subject to all statutory and regulatory provisions applicable to the delivery of services by way of a provider of WPCS;
- Provide assistance to recipients in finding WPCS through the establishment of a registry;
- Perform criminal background checks, at the provider's expense, as a condition of a provider’s continued enrollment in the program authorizing WPCS, deny an applicant from being placed on the registry or providing services to any recipient of WPCS services if that applicant has been convicted of specified criminal offenses, provide an individual a copy of his or her state-level criminal offender record information search response in the event of a denial that is based on this information, develop a written appeal process for individuals determined to be ineligible to receive payment for the provision of WPCS, and supply certain information to DSS regarding any such appeal;
- Establish a referral system under which WPCS personnel shall be referred to recipients;
- Perform any other function related to the delivery of WPCS;
- Not be deemed the employer of WPCS personnel for purposes of liability due to the negligence or intentional torts of the WPCS personnel; and
- In no case be held liable for action or omission of any WPCS personnel whom the nonprofit consortium or public authority did not list on its registry or otherwise refer to a recipient;
- Requires counties and the state be immune from liability in the administration of WPCS, as specified;
- Maintains the right of recipients to elect to receive services from WPCS personnel who are not referred to them by the public authority or nonprofit consortium;
- Stipulates that nothing in the section being amended by this bill shall be construed to impact the state’s responsibility with respect to the state payroll system, unemployment insurance, or worker’s compensation, among other things as specified, for providers of WPCS; and
- Requires the State Controller to make and transfer any deductions agreed to in collective bargaining from the wages of WPCS personnel who are employees of a public authority, as specified.
- Requires any public authority or nonprofit consortium to act as the employer to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment for individuals providing WPCS, as specified.
- Clarifies that, in addition to payment as currently stipulated in law, WPCS providers must also receive benefits on a schedule and in a manner by which providers of personal care services receive payment, as specified.
- Makes technical changes.
EXISTING LAW:
- Establishes the IHSS program to provide supportive services, including domestic, protective supervision, personal care, and paramedical services as specified, to individuals who are aged, blind, or living with disabilities, and who are unable to perform the services themselves or remain safely in their homes without receiving these services. (Welfare and Institutions Code (WIC) 12300 et seq.)
- States that counties may choose to contract with a nonprofit consortium or establish a public authority for the provision of IHSS services. Requires nonprofit consortia and public authorities to, among other things, establish a registry to assist recipients in locating IHSS providers, and to investigate the background and qualifications of potential providers, as specified. (WIC 12301.6)
- Maintains an IHSS recipient’s right to hire, fire, and supervise the work of any IHSS provider, regardless of the employer responsibilities of a public authority or nonprofit consortium, as specified. (WIC 12301.6)
- Defines “waiver personal care services” to mean personal care services authorized by the Department of Health Care Services (DHCS) for persons who are eligible for either nursing or model nursing facility waiver services. (WIC 14132.97 (a)(1))
- Establishes requirements, including eligibility criteria, for waiver personal care services. (WIC 14132.97)
- Authorizes in federal law the Medicaid Home and Community Based Services (HCBS) waiver program to offer alternatives to institutionalization of individuals, allowing for, among other things, the provision of personal care services. (42 United States Code (U.S.C.) 1396n, section 1915(c))
FISCAL EFFECT: According to the Assembly Appropriations Committee, this bill may result in estimated ongoing annual costs of $469,000 ($206,000 General Fund) for public authorities to administer the program.
COMMENTS:
In-Home Supportive Services: The IHSS program enables low-income individuals who are at least 65 years old, living with disabilities, or blind to remain in their own homes by paying for care providers to assist with personal care services (such as toileting, bathing, and grooming), domestic and related services (meal preparation, housecleaning, and the like), paramedical services, and protective supervision. Approximately 466,000 Californians receive IHSS each month, with about 98% receiving it as a Medicaid benefit.
IHSS is a county-administered service. When an individual is determined eligible for IHSS services by a county social worker, he or she is authorized for a certain number of hours of care. IHSS recipients are responsible for hiring, firing, directing, and supervising their IHSS workers. These responsibilities also include some administrative duties, such as scheduling and signing timesheets; however, the state handles payroll. There are currently about 460,554 eligible IHSS providers in the state; approximately 69% are relatives and an estimated 44% are relatives who live in the same home as the recipient. Providers must complete an enrollment process, including submitting fingerprint images for a criminal background check and participating in a provider orientation prior to receiving payment for services.
Public Authorities: While an IHSS recipient is considered to be the employer of his or her provider, counties are required to establish an entity to act as the employer of record and participate in collective bargaining regarding wages, benefits, and other terms and conditions of employment for IHSS providers. All but two counties have established public authorities for these purposes. Section 12301.6 of the Welfare and Institutions Code sets forth a number of requirements for public authorities, including, but not limited to: establishing a registry to assist recipients in finding a provider; investigating the qualifications and background of prospective providers; establishing a provider referral system; providing training for recipients and providers; and performing any other functions related to the delivery of IHSS.
Waiver Personal Care Services: Waivers enable states to apply for greater flexibility in their use of federal Medicaid dollars. Section 1915(c) waivers, known as Home and Community-Based Services (HCBS) waivers, permit states to use Medicaid (in California, Medi-Cal) dollars to provide long-term care services in home- and community-based settings as an alternative to the use of institutional settings. A variety of services can be offered under an HCBS waiver, including personal care, case management, adult day health, habilitation, home health aide, and other services.
Waiver Personal Care Services (WPCS) are authorized by DHCS and available to eligible Medi-Cal participants who are enrolled in either the HCBS In-Home Operations (IHO) or Nursing Facility/Acute Hospital (NF/AH) waivers. Both of these waivers offer services to Medi-Cal beneficiaries in their homes or communities; these are individuals who would otherwise qualify for care in a skilled nursing facility. Personal care services provide nonmedical assistance so that individuals can live with as much independence as possible. Generally, these services include assistance with activities of daily living, such as bathing, toileting, dressing, food preparation, and the like. Some eligible individuals who demonstrate need are able to supplement their approved IHSS hours with WPCS hours in order to reduce unmet need.
In general, the WPCS payroll and other program elements are administered the same as IHSS. Additionally, WPCS providers – like IHSS providers – are often relatives and often live with the recipient(s). DHCS does not have data on all relative types, but estimates that about 30% of WPCS providers are parents; about half of WPCS providers are live-in. Overall, DHCS data indicate that there are approximately 3,350 WPCS providers in California; however, many of these providers are also IHSS providers. While exact numbers are difficult to come by, the sponsors of this bill estimate that those providers that solely provide WPCS – i.e., the universe of providers impacted by this bill – number about 700.
Need for this bill: According to the author:
WPCS providers do the same important home health-care work as IHSS providers, yet they are viewed differently under the law as it relates to labor relations. This is because, unlike with IHSS, there is no clear employer of record for WPCS providers. WPCS allows disabled Medi-Cal consumers who need additional personal care hours to avoid institutionalization the ability to receive this care at home. While many WPCS providers also provide IHSS services, a small percentage do not. This small percentage of WPCS only providers were inadvertently excluded from the existing statutes which clarify who the employer of record is for IHSS providers. With no official employer of record, there is a disparity under the law regarding entitlement to myriad benefits. This bill merely seeks to ensure that similarly situated workers, performing the same work, are entitled to the same rights and benefits under the law.
PRIOR LEGISLATION:
AB 1682 (Honda), Chapter 90, Statutes of 1999, among other things, required each county to act as, or establish, an employer for IHSS personnel for purposes of collective bargaining and required DSS to establish a timetable for implementation of this requirement.
Analysis Prepared by: Daphne Hunt / HUM. S. / (916) 319-2089 FN: 0000728
Date of Hearing: April 26, 2017
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez Fletcher, Chair
ABPCA Bill Id:AB 432
Author:(Thurmond) – As Amended Ver:March 29, 2017
Policy Committee: | Human Services | Vote: | 7 - 0 |
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill authorizes county public authorities and nonprofit consortia as the employers of record for providers of waiver personal care services (WPCS) and adopts related changes in order to establish parity between WPCS and in-home supportive services (IHSS) providers for purposes of labor relations.
FISCAL EFFECT:
Estimated ongoing annual costs of $469,000 ($206,000 GF) for public authorities to administer the program.
COMMENTS:
- Purpose. According to the author, “WPCS providers do the same important home health-care work as IHSS providers, yet they are viewed differently under the law as it relates to labor relations. This is because, unlike with IHSS, there is no clear employer of record for WPCS providers. WPCS allows disabled Medi-Cal consumers who need additional personal care hours to avoid institutionalization, the ability to receive this care at home. While many WPCS providers also provide IHSS services, a small percentage do not. This small percentage of WPCS only providers were inadvertently excluded from the existing statutes which clarify who the employer of record is for IHSS providers. With no official employer of record, there is a disparity under the law regarding entitlement to myriad benefits. This bill merely seeks to ensure that similarly situated workers, performing the same work, are entitled to the same rights and benefits under the law.”
- Background. IHSS is a county administered program for aged, blind, or disabled persons that provides basic personal services so that recipients can safely remain in their homes. Under the Medi-Cal program, similar services, known as personal care option services, are provided to eligible individuals. The Medi-Cal program also defines “waiver personal care services” to mean personal care services authorized by the State Department of Health Care Services (DHCS) for persons eligible for either nursing or model nursing facility waiver services. Specifically, WPCS are available to eligible Medi-Cal participants who are enrolled in either the HCBS In-Home Operations (IHO) or Nursing Facility/Acute Hospital (NF/AH) waivers.
In general, the WPCS payroll and other program elements are administered similarly to IHSS. Additionally, WPCS providers – like IHSS providers – are often relatives and often live with the recipient(s). DHCS estimates that about 30% of WPCS providers are parents and about half of WPCS providers are live-ins.
DHCS data indicate that there are approximately 3,350 WPCS providers in California, most of who are also IHSS providers. Only those WPCS providers who are not also IHSS providers are impacted by this bill. While exact numbers are difficult to come by, the sponsors of this bill estimate that providers who solely provide WPCS number about 700.
- Public Authorities. While an IHSS recipient is considered to be the employer of his or her provider, counties are required to establish an entity to act as the employer of record and participate in collective bargaining regarding wages, benefits, and other terms and conditions of employment for IHSS providers. All but two counties have established public authorities for these purposes. Existing law sets forth a number of requirements for public authorities, including, but not limited to: establishing a registry to assist recipients in finding a provider; investigating the qualifications and background of prospective providers; establishing a provider referral system; providing training for recipients and providers; and performing any other functions related to the delivery of IHSS. This bill would authorize counties to establish a public authority as the employers of record for WPCS as well.
- Prior Legislation. AB 1682 (Honda), Chapter 90, Statutes of 1999, among other things, required each county to act as, or establish, an employer for IHSS personnel for purposes of collective bargaining and required DSS to establish a timetable for implementation of this requirement.
Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081
Date of Hearing: April 4, 2017
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Blanca Rubio, Chair
ABPCA Bill Id:AB 432 (
Author:Thurmond) – As Amended Ver:March 29, 2017
SUBJECT: Personal care services
SUMMARY: Establishes county public authorities and nonprofit consortia as the employers of record for providers of waiver personal care services (WPCS) and adopts related changes in order to establish parity between WPCS and in-home supportive services (IHSS) providers for purposes of labor relations.
Specifically, this bill:
- Adds to current law regarding the delivery of in-home supportive services (IHSS) the following provisions regarding waiver personal care services (WPCS):
- Authorizes a county board of supervisors to, at its option, contract with a nonprofit consortium or establish, by ordinance, a public authority to provide for the delivery of WPCS;
- Requires a public authority to be a corporate public body exercising public and essential governmental functions and that has all the powers necessary or convenient to carry out the delivery of WPCS;
- Stipulates that any public authority established to provide for the delivery of IHSS and WPCS and any nonprofit consortium contracting with a county shall be deemed to be the employer of providers of WPCS, as specified, but maintains recipients’ right to hire, fire, and supervise the work of any WPCS personnel providing services to them.
- Requires each nonprofit consortium or public authority to, as specified:
- Comply with and be subject to all statutory and regulatory provisions applicable to the delivery of services by way of a provider of WPCS;
- Provide assistance to recipients in finding WPCS through the establishment of a registry;
- Perform criminal background checks, at the provider’s expense, as a condition of a provider’s continued enrollment in the program authorizing WPCS, deny an applicant from being placed on the registry or providing services to any recipient of WPCS services if that applicant has been convicted of specified criminal offenses, provide an individual a copy of his or her state-level criminal offender record information search response in the event of a denial that is based on this information, develop a written appeal process for individuals determined to be ineligible to receive payment for the provision of WPCS, and supply certain information to DSS regarding any such appeal;
- Establish a referral system under which WPCS personnel shall be referred to recipients;
- Perform any other function related to the delivery of WPCS;
- Not be deemed the employer of WPCS personnel for purposes of liability due to the negligence or intentional torts of the WPCS personnel; and
- In no case be held liable for action or omission of any WPCS personnel whom the nonprofit consortium or public authority did not list on its registry or otherwise refer to a recipient;
- Requires counties and the state be immune from liability in the administration of WPCS, as specified;
- Maintains the right of recipients to elect to receive services from WPCS personnel who are not referred to them by the public authority or nonprofit consortium;
- Stipulates that nothing in the section being amended by this bill shall be construed to impact the state’s responsibility with respect to the state payroll system, unemployment insurance, or worker’s compensation, among other things as specified, for providers of WPCS; and
- Requires the State Controller to make and transfer any deductions agreed to in collective bargaining from the wages of WPCS personnel who are employees of a public authority, as specified.
- Requires any public authority or nonprofit consortium to act as the employer to meet and confer in good faith regarding wages, benefits, and other terms and conditions of employment for individuals providing WPCS, as specified.
- Clarifies that, in addition to payment as currently stipulated in law, WPCS providers must also receive benefits on a schedule and in a manner by which providers of personal care services receive payment, as specified.
- Makes technical changes.
EXISTING LAW:
- Establishes the IHSS program to provide supportive services, including domestic, protective supervision, personal care, and paramedical services as specified, to individuals who are aged, blind, or living with disabilities, and who are unable to perform the services themselves or remain safely in their homes without receiving these services. (WIC 12300 et seq.)
- States that counties may choose to contract with a nonprofit consortium or establish a public authority for the provision of IHSS services. Requires nonprofit consortia and public authorities to, among other things, establish a registry to assist recipients in locating IHSS providers, and to investigate the background and qualifications of potential providers, as specified. (WIC 12301.6)
- Maintains an IHSS recipient’s right to hire, fire, and supervise the work of any IHSS provider, regardless of the employer responsibilities of a public authority or nonprofit consortium, as specified. (WIC 12301.6)
- Defines “waiver personal care services” to mean personal care services authorized by the Department of Health Care Services (DHCS) for persons who are eligible for either nursing or model nursing facility waiver services. (WIC 14132.97 (a)(1))
- Establishes requirements, including eligibility criteria, for waiver personal care services. (WIC 14132.97)
- Authorizes in federal law the Medicaid Home and Community Based Services (HCBS) waiver program to offer alternatives to institutionalization of individuals, allowing for, among other things, the provision of personal care services. (42 U.S.C. 1396n, section 1915(c))
FISCAL EFFECT: Unknown.
COMMENTS:
In-Home Supportive Services: The IHSS program enables low-income individuals who are at least 65 years old, living with disabilities, or blind to remain in their own homes by paying for care providers to assist with personal care services (such as toileting, bathing, and grooming), domestic and related services (meal preparation, housecleaning, and the like), paramedical services, and protective supervision. Approximately 466,000 Californians receive IHSS each month, with about 98% receiving it as a Medicaid benefit.
IHSS is a county-administered service. When an individual is determined eligible for IHSS services by a county social worker, he or she is authorized for a certain number of hours of care. IHSS recipients are responsible for hiring, firing, directing, and supervising their IHSS workers. These responsibilities also include some administrative duties, such as scheduling and signing timesheets; however, the state handles payroll. There are currently about 460,554 eligible IHSS providers in the state; approximately 69% are relatives and an estimated 44% are relatives who live in the same home as the recipient. Providers must complete an enrollment process, including submitting fingerprint images for a criminal background check and participating in a provider orientation prior to receiving payment for services.
Public Authorities: While an IHSS recipient is considered to be the employer of his or her provider, counties are required to establish an entity to act as the employer of record and participate in collective bargaining regarding wages, benefits, and other terms and conditions of employment for IHSS providers. All but two counties have established public authorities for these purposes. Section 12301.6 of the Welfare and Institutions Code sets forth a number of requirements for public authorities, including, but not limited to: establishing a registry to assist recipients in finding a provider; investigating the qualifications and background of prospective providers; establishing a provider referral system; providing training for recipients and providers; and performing any other functions related to the delivery of IHSS.
Waiver Personal Care Services: Waivers enable states to apply for greater flexibility in their use of federal Medicaid dollars. Section 1915(c) waivers, known as Home and Community-Based Services (HCBS) waivers, permit states to use Medicaid (in California, Medi-Cal) dollars to provide long-term care services in home- and community-based settings as an alternative to the use of institutional settings. A variety of services can be offered under an HCBS waiver, including personal care, case management, adult day health, habilitation, home health aide, and other services.
Waiver Personal Care Services (WPCS) are authorized by DHCS and available to eligible Medi-Cal participants who are enrolled in either the HCBS In-Home Operations (IHO) or Nursing Facility/Acute Hospital (NF/AH) waivers. Both of these waivers offer services to Medi-Cal beneficiaries in their homes or communities; these are individuals who would otherwise qualify for care in a skilled nursing facility. Personal care services provide nonmedical assistance so that individuals can live with as much independence as possible. Generally, these services include assistance with activities of daily living, such as bathing, toileting, dressing, food preparation, and the like. Some eligible individuals who demonstrate need are able to supplement their approved IHSS hours with WPCS hours in order to reduce unmet need.
In general, the WPCS payroll and other program elements are administered the same as IHSS. Additionally, WPCS providers – like IHSS providers – are often relatives and often live with the recipient(s). DHCS does not have data on all relative types, but estimates that about 30% of WPCS providers are parents; about half of WPCS providers are live-in. Overall, DHCS data indicate that there are approximately 3,350 WPCS providers in California; however, many of these providers are also IHSS providers. While exact numbers are difficult to come by, the sponsors of this bill estimate that those providers that solely provide WPCS – i.e., the universe of providers impacted by this bill – number about 700.
Need for this bill: According to the author:
“WPCS providers do the same important home health-care work as IHSS providers, yet they are viewed differently under the law as it relates to labor relations. This is because, unlike with IHSS, there is no clear employer of record for WPCS providers. WPCS allows disabled Medi-Cal consumers who need additional personal care hours to avoid institutionalization the ability to receive this care at home. While many WPCS providers also provide IHSS services, a small percentage do not. This small percentage of WPCS only providers were inadvertently excluded from the existing statutes which clarify who the employer of record is for IHSS providers. With no official employer of record, there is a disparity under the law regarding entitlement to myriad benefits. This bill merely seeks to ensure that similarly situated workers, performing the same work, are entitled to the same rights and benefits under the law.”
PRIOR LEGISLATION:
AB 1682 (Honda), Chapter 90, Statutes of 1999, among other things, required each county to act as, or establish, an employer for IHSS personnel for purposes of collective bargaining and required DSS to establish a timetable for implementation of this requirement.
REGISTERED SUPPORT / OPPOSITION:
Support
California Association of Public Authorities for IHSS (Sponsor)
Personal Assistance Services Council (Sponsor)
American Federation of State, County and Municipal Employees
SEIU California
UDW/AFSCME Local 3930
Opposition
None on file.
Analysis Prepared by: Daphne Hunt / HUM. S. / (916) 319-2089
Discussed in Hearing
1MIN
Assembly Floor
2MIN
Senate Floor
4MIN
Senate Standing Committee on Human Services
1H
Senate Standing Committee on Appropriations
1MIN
Assembly Floor
1H
Assembly Standing Committee on Appropriations
Bill Author
Bill Co-Author(s):